Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2022
  4. NWS v Director-General Department of Justice and Attorney-General - [2022] QCAT 18

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

NWS v Director-General Department of Justice and Attorney-General[2022] QCAT 18

NWS v Director-General Department of Justice and Attorney-General[2022] QCAT 18

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

NWS v Director-General Department of Justice and Attorney-General [2022] QCAT 18

PARTIES:

NWS

(applicant)

v

Director-General Department of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

CML083-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

14 January 2022

HEARING DATE:

8 March 2021

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

  1. The decision of the Director-General, 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  decision that there is no exceptional case.
  2. The publication of the contents of any document or thing filed in or produced to the tribunal, and any evidence given to the tribunal by any witness, is prohibited to the extent that it could lead to the disclosure of the identity of the applicant, or any member of the applicant’s family or any non-party to the proceedings, including any child, pursuant to section 66 (1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE LAW- CHILD WELFARE UNDER STATE AND TERRITORY LEGISLATION – Blue Card – where applicant was issued with a negative notice – whether exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice – where applicant has criminal history – where applicant is Aboriginal – where applicant was making a positive contribution to both the indigenous and broader Australian community by his involvement in a national research study relating to indigenous children – where applicant showed insight into, and remorse for, his offending – where protective factors were discussed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1)

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221

APPEARANCES &

REPRESENTATION:

Applicant:

A. Preston of Counsel instructed by Campbell Law

Respondent:

T. Jones (Legal Officer, Blue Card Services)

REASONS FOR DECISION

  1. [1]
    NWS is an aboriginal man. He was issued a negative notice by the Director, Blue Card Services, Department of Justice and Attorney-General (the Department) under the Working with Children (Risk Management and Screening) Act 2000 (‘the Act’) on 30 January 2020 which prevents him from obtaining a blue card. He filed an application to review that decision in the Tribunal on 2 March 2020.
  2. [2]
    I heard the matter by oral evidence, with NWS, Dr V and Ms L participating by telephone, and a report of Dr C being discussed, on 8 March 2021.
  3. [3]
    I made a non-disclosure order at the conclusion of the hearing as follows:

4. Pending any further or other order of the tribunal, publication of any statements, documents or other material, relating to these proceedings, is prohibited to the extent that could identify any party, person or location.

  1. [4]
    At the conclusion of the hearing I gave directions for the filing of submissions in writing. Submissions were subsequently filed by both parties. These are my reasons in the matter.

Reasons for the negative notice

  1. [5]
    The reasons of the Department for being satisfied that an exceptional case exists which would not be in the best interests of children for positive notice to be issued to NWS referred to the following matters:[1]
    1. (a)
      NWS criminal history which records charges of rape and several convictions involving violence and antisocial behaviour.
    2. (b)
      A pattern of violent and anti-social offending behaviour which has continued throughout his mature adulthood.
    3. (c)
      Concern about NWS ability to manage his anger, judge appropriate behaviour and deal with situations of conflict or perceived difficulty.
  2. [6]
    NWS’s criminal history related to matters in the relevant state between 1995 and 2015. Convictions were recorded as follows:
    1. (a)
      convicted and fined $200 for producing cannabis in 1995,
    2. (b)
      convicted and fined $50 for possessing equipment to administer cannabis in 1996
    3. (c)
      estreatment of bail found proved and estreated $300 in 2004
    4. (d)
      convicted of disorderly behaviour, dismissed without penalty in 2005
    5. (e)
      convicted of damage to property and put on a good behaviour bond for 12 months and fined $1,000 in 2015.
  3. [7]
    NWS was also charged with other offences which were dismissed or withdrawn, or no conviction was recorded:
    1. (a)
      common assault on person other than family member, without conviction, good behaviour bond $100 for 12 months – 80 hours community service within five months in 1997
    2. (b)
      resist police and loitering, dismissed want of prosecution in 2005
    3. (c)
      rape (3 charges), dismissed want of prosecution in 2006
    4. (d)
      common assault-basic offence, withdrawn; fighting, without conviction, fined $200 in 2011
    5. (e)
      police application for intervention order – non-domestic abuse, dismissed want of prosecution in 2015

Life story

  1. [8]
    NWS filed a life story document on 27 March 2020. He noted that he belongs to an aboriginal people whose traditional lands are in a State of Australia (‘the relevant state’). He said that he grew up in an extended family with a large number of children. He said that he experienced a lot of racism and bullying when he was at primary school which had 50% indigenous children, and 50% other children. He left high school halfway through year 11 and took up an apprenticeship in the construction industry, but did not complete the apprenticeship. He described the next period of his life as follows:[2]

21. I was unemployed then and in the wilderness a bit. I have to admit that, at that stage of my life, I was lost. That was when I started growing and smoking cannabis (1995 – 96). I was in my early 20s, unemployed and was finding it difficult to find a job. After I got into trouble with the police for growing cannabis I realised that this was not a good long-term option for me that I needed to stay out of trouble and focus.

  1. [9]
    He said that the 1997 assault charge arose when he, in company with others, confronted a group of non-indigenous football players who had assaulted his cousin. He said that he was hit with a glass, and needed 22 stitches. He comments that: ‘I was 20 years old at the time and my instinct was to fight back to defend myself and my friends. In hindsight, I realise that this only made things worse’.[3]
  2. [10]
    He says that he experienced bullying and racism not just from the white people in the town in the relevant state he was living in, but also from other aboriginal people there, some of whom made ‘continuous snide remarks’ that his family ‘were white and that we didn’t have a culture, that we weren’t traditional. We were told we were nobodies. I felt I didn’t belong.’[4]
  3. [11]
    He said that he bought a house with his girlfriend in 1998/1999 and lived with her until 2000/2001 when there was an amicable split.[5]
  4. [12]
    He said that in 1999 he worked as an Aboriginal Liaison Officer at the Aboriginal Legal Rights Movement – Native Title Unit, which involved supporting Aboriginal families including children with complex issues in home and community centres; and in 2000 worked as an Aboriginal Family Support Officer with Aboriginal Family Support Services, and supported many children and their families who were experiencing financial and social difficulties; and in 2001 joined Centrelink as a Customer Services Officer focusing on the needs of aboriginal clients [6]
  5. [13]
    He said that he worked as a trade assistant in construction and mechanics between 2006 and 2010; and in 2010 he worked as a facilitator and work mentor at a work agency in a customer service role focusing on aboriginal clients.[7]
  6. [14]
    In 2011 he gained a position as an Aboriginal Community Education Officer at the relevant state’s Department of Education and Child Development, and after his contract ended took up studying for teaching at University in the relevant state. He left the University, and undertook employment training courses between 2010 and 2015.[8]
  7. [15]
    In 2015 he says that he took a role as an administration officer in the Department of Social Services and is still employed in that role.[9]
  8. [16]
    He said that he has two young children who are in their early teens, is not in a relationship with the children’s mother, but supports her with the children and sees them regularly and is very active in their lives.[10]
  9. [17]
    He said that the 2011 conviction related to a fight at a hotel where he was involved in a physical altercation with a bouncer who had confronted him violently and called him by a racial slur. He said that he knows he should have walked away, and regrets reacting to the confrontation.[11]
  10. [18]
    He said that the 2015 damage to property charge was due to his frustration with native title issues, and that he lost his temper at the relevant state’s Native Title Services offices and damaged property, which he should not have done.[12]
  11. [19]
    He described his main focus outside of work and family as being on behalf of his people, and that their title claim was eventually recognised by the Federal Court of Australia.[13]

Evidence of NWS

  1. [20]
    NWS gave evidence at the hearing.
  2. [21]
    He was asked about the cannabis offences in 1995 and 1996 and said that he understands now that cannabis is not good for your health, and that was a moment of being young and not making good decisions.
  3. [22]
    He said that he wished he had never been part of the confrontation at the football club in 1997.
  4. [23]
    He said that he regretted the 2015 incident at the native title service offices, and that his behaviour was wrong.
  5. [24]
    In relation to the rape charges, he said that the sex was consensual.
  6. [25]
    He said that he has never been refused clearance to work in any of his positions in the relevant state which involved working with children.
  7. [26]
    He said that he has made changes to his lifestyle to choose the best and correct path. He acknowledged that alcohol was involved in several of the offences. He said that he had used cannabis on and off throughout his adult life, that he does still occasionally use cannabis perhaps once a year, but not when children were about.
  8. [27]
    He said that in his position as a research officer, he needs a clearance to work with children in every state so that he could interview parents with children. He described the research study that he was involved in as giving the government an understanding of how aboriginal children are growing up.
  9. [28]
    He said that since he had received the negative notice in Queensland, that he been placed back in a state office working as a program manager.

Evidence of Dr V

  1. [29]
    Dr V said that he is an aboriginal man, and holds a PhD in English from a capital city university, and is the curator of Aboriginal and Torres Strait Islander Studies. He said that he is an author, and writes young adults literature focusing on aboriginal matters, and is one of Australia’s most published aboriginal authors.
  2. [30]
    Dr V said that he had known NWS since 1993, and had had a close relationship with him since 1996. He said that his daughters address NWS as uncle.
  3. [31]
    He said that he knew of NWS’s offences as to assault, as to the rape allegation, and as to the incident at the Native Title Services offices. He said that NWS told him that he was frustrated at the time as his grandparents were not being recognised as part of the native title holding, and his family were not being included. He said that NWS told him he had to disengage then from any native title discussions. He said that NWS’s family were subsequently recognised as native title holders.
  4. [32]
    Dr V said that NWS is a dark-skinned man, and stood out in the relevant state, and as young men they had to be careful how they engaged with people.
  5. [33]
    Dr V said that he knows that NWS is remorseful as to his offending. He said that he and NWS had been friends since being young men, and that he did not see NWS objectifying women, and that he trusted NWS and believed him, and saw him as a respectful person.
  6. [34]
    He said that he did not have concerns about NWS working with children, and had no hesitation in NWS staying in his house, and that he would leave his daughters in NWS care.
  7. [35]
    He said that he did not see NWS as having a problem with alcohol, and that aboriginal people were seen by some people, such as hotel bouncers, as being different as to alcohol.
  8. [36]
    He said that if a child made racist remarks to NWS he would see him as replying with empathy and talking to the child.
  9. [37]
    He said that NWS was highly respected in the aboriginal community.,

Evidence of Ms L

  1. [38]
    Ms L gave evidence at the hearing. She said that she works for the Commonwealth Department of Social Services, and at one time was assistant director for 6 ½ years. She said that had known NWS for 4 to 5 years.
  2. [39]
    She described the research study, which NWS was assisting with, as a longitudinal study of indigenous children which has been tracking the same children for 15 years to see how they progress and how policy can develop. She described it as the longest longitudinal study of indigenous affairs in the world. She said that the study started in 2008 with 1,760 participants and that 1,250 had been retained, which she described as remarkable.
  3. [40]
    She said that obtaining the data involved people travelling around Australia to conduct interviews with indigenous families. She said that the interviewers had to show a lot of respect to the families, and that some of the locations could be very remote. She said the interviewers had to gain respect of the families to enter the house and that it was necessary to have the right person in the position. She said that some of the children involved had been in multiple foster homes, or in detention.
  4. [41]
    She said that NWS had conducted himself appropriately in an aboriginal context in the course of this work. She said that she had spoken to some of the women at the relevant state’s office who said that NWS was very polite, and very respectful and that people would like him. She said that getting into an Aboriginal or Torres Strait Islander house is difficult, and that it was necessary to have some male interviewers as it was not culturally appropriate for a female to interview a male.
  5. [42]
    She said that NWS would interview children at least 3 to 4 times a week, and that there had never been any complaint about inappropriate behaviour by him with children.

Evidence of Dr C

  1. [43]
    A report of Dr C, a psychiatrist in the relevant state, dated 22 June 2020 was submitted in evidence. He had met with NWS for the purpose of preparing the report on 17 June 2020.
  2. [44]
    Dr C was not available for cross examination.
  3. [45]
    Dr C noted that he regularly writes forensic psychiatry reports involving criminal, civil, youth and family law, and his testimony has been accepted in civil and criminal cases in the relevant state and the Federal Court of Australia.[14]
  4. [46]
    He noted that NWS advised as to his marijuana and alcohol use as follows:[15]

He rarely uses marijuana on a regular basis – only about once a year. When he does use marijuana, he said he tends to use on a regular basis for about a month. It’s the one drug he has never been able to get off, and remain off, in the long-term.

He doesn’t usually drink alcohol during the week, but will go out on the weekend and drink about six standard drinks, of either beer or whiskey.

  1. [47]
    He noted NWS’s explanation as to the circumstances surrounding the rape charges, which were not proceeded with, and that NWS maintained that the events were consensual, and ‘that part of him was disappointed that it didn’t go to court, as he wanted the opportunity to fully clear his name with a not guilty finding’.[16]
  2. [48]
    Dr C described NWS, on mental state examination, as a pleasant cooperative man, who spoke at a normal rate with good tonal variation. He noted the affect was reactive, there were no perceptual or cognitive abnormalities, and he had normal insight and judgement.
  3. [49]
    Dr C discussed NWS response to racism as follows:[17]

The victim of racism all of his life, he has little tolerance for racist comments and will now speak out against such insults. Although reporting that he doesn’t want to get involved in fights, he faces the dilemma of many people in a minority, who simply want to assert the right to go about life in a peaceful and orderly way, but without having to avoid activities that are freely open to other members of society, such as having a quiet drink in a hotel.

I don’t think there is a fully ‘right’ answer on how to respond in such a circumstance. In the short term, avoidance of such situations (in effect, kowtowing to the abuse) might be an appropriate outcome if he was needing to protect vulnerable people, such as children, but when by himself, it may be seen as a courageous and honourable action to stand up to abuse, without engaging in physical violence. Mahatma Gandhi suggested passive resistance in such circumstances, and most times, this appears to be NWS’s method, although occasionally, he can be provoked into violence. He seems to be able to control his violence when it occurs. It is not a frequent occurrence. He was not in control during the incident of 19 January 2015 where he damaged property at the Native Title Office.

  1. [50]
    Dr C concluded that NWS appears to have reasonable insight into his offending, and certainly has control of his actions. He noted that none of his offending involved children, and he also demonstrated protective behaviours towards his own children, whereas many men in his situation would put their own needs ahead of those of their children.[18]
  2. [51]
    Dr C considered that the main risk for further offending is NWS’s sensitivity to racist comments and his willingness to confront such comments.[19]
  3. [52]
    Dr C considered that protective behaviours were that NWS wants to be a role model for his children, and that he identifies a propensity to use marijuana which he has significantly reduced and keeps his alcohol consumption down to only on weekends. He noted that NWS cares for his brother and he confides in his mother, is employed, and that despite stresses in the workplace he has not reacted inappropriately. He considered that NWS preventive strategies are to moderate his drug use and drinking.[20]

Submissions of NWS

  1. [53]
    Closing submissions by Counsel for NWS dated 30 April 2021 were filed in the Tribunal.
  2. [54]
    It is noted for NWS that the offending and alleged offending all occurred between August 1995 and January 2015; that the offences fall primarily within two periods been 1995-1997 and 2004-2005, with the charges of rape made in 2006, except for the offence of damaging the property of the Native Title Service which occurred in 2015.
  3. [55]
    It was submitted that the critical issues which may be distilled from the evidence were:[21]
    1. (a)
      the applicant’s use of cannabis and alcohol;
    2. (b)
      whether the applicant is inclined to inappropriate responses when confronted with racial slurs.
  4. [56]
    It was submitted that NWS does not use cannabis in circumstances where children may be present because it is inappropriate and not an example to be set, and that there was no evidence that his consumption of alcohol was either an inappropriate model for children or that his consumption was apt or likely to affect children in any way.
  5. [57]
    As to NWS’s response to racial slurs, it is submitted that he sees that violence is not now an appropriate response, and that a physical response to any racial epithet last occurred 10 years ago.
  6. [58]
    It was submitted as to risks to children, that NWS’s positive work history satisfies concerns in that regard:[22]

[122] In this case, the Tribunal is assisted in its predictive evaluation of the potential risks to children in that the applicant has been authorised to, and has been doing, the very thing that the Tribunal must predict to its satisfaction that he ought not be allowed to engage in – work with children. He has done so unfailingly under constant scrutiny as part of the quality and assurance controls of the longitudinal study and has received positive feedback on every occasion that it has been sought by those responsible for the study. As to the question of whether the tribunal could be satisfied that this is an exceptional case, the evidence shows how the applicant does comport himself appropriately when working with children. The correct and preferable decision is that there is no exceptional case, and demonstrably so.

  1. [59]
    NWS sought a non-publication order as to any evidence that would identify witnesses to proceedings, and the non-publication of his name and other matters that would be apt to identify him.[23]
  2. [60]
    It was submitted that in this case identification of the children and their families participating in the longitudinal study is apt to affect adversely the confidence in, and engagement with, the study, and the publication of the names of witnesses or any third parties are necessary as publication of some names may unintentionally lead to the identification of a child or children. [24]
  3. [61]
    It was also submitted that publication as to the parties to the allegation of rape may lead to upset in the relevant community, and that the relevant state Police documents ought not be published.

Submissions of the Department

  1. [62]
    The department submitted that NWS disproportionate and violent response to situations of perceived conflict, irrespective of the trigger of the conflict, raises concerns as to his ability to provide a protective environment for children.[25]
  2. [63]
    The Department refers to aspects of NWS criminal history, and comments of Dr C and, as to NWS responses to triggers as follows:[26]

[66]. In a statutory declaration sworn by the applicant, he states that in relation to the offence in 1996, he ‘regrets the incident and as a more mature person do not believe that I would react in the same way ‘. It is submitted this comment is inconsistent with other material filed in these proceedings. In particular:

  1. (1)
    The applicant’s criminal history indicates the applicant has continued to respond to triggers in a similar manner well into adulthood, and
  2. (2)
    The psychiatric report of Dr C states that the applicant is now: ‘at a point in life where he no longer wants to be silent about such issues’ with the applicant providing Dr C with a ‘recent example’ of where he entered into a verbal argument with patrons of a hotel in response to racist and abusive comments.
  1. [64]
    The Department submits that the psychiatric report raises concern that NWS has not yet identified a link between his behaviour and its relevance to regulated employment under the Act, with the main risk factor for further offending being his sensitivity to racist comments and his willingness to confront such comments.[27]
  2. [65]
    The Department submits that the protective factors suggested by NWS, being support from a support network including his grandmother, his mother and the mother of his children, were protective factors at the time of the commission of the offences, and it would appear were not sufficient to prevent that offending, and that there remains a concern as to whether these factors will be sufficient to deter NWS from responding in a similar manner in the future.[28]
  3. [66]
    The Department submits that the continued consumption of dangerous and illicit drugs by NWS would be likely to detract from his ability to provide a protective environment for children in his care.[29]
  4. [67]
    The Department submits that the object of the Act and the principle that the welfare and best interests of the child are paramount support a precautionary approach to decision-making in child-related employment matters.
  5. [68]
    The Department took a neutral review in relation to the making of a non-publication order as to its impact on NWS, but noted that publication of information as to NWS criminal history may allow for other parties to be identified.[30]

Discussion

  1. [69]
    Section 221(1) of the Act provides that the Chief Executive must issue a positive notice to an applicant in the following circumstances:

221 Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence

  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if –
  1. a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  1. b)
    the Chief Executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person –
  1. investigative information;
  2. disciplinary information;
  3. a charge for an offence other than a disqualifying offence;
  4. a charge for a disqualifying offence that has been dealt with other than by a conviction; or
  1. c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. [70]
    However, section 221(2) of the Act provides that if subsection (1)(b) or (c) applies to the person and the Chief Executive is satisfied it is an exceptional case in which it would not be in the best interests of children to issue a positive notice, the Chief Executive must issue a negative notice to the person.
  2. [71]
    In this matter, NWS has convictions for offences other than a serious offence, and has been the subject of charges for an offence including a disqualifying offence (as those terms are defined in sections 167 and 168 of the Act).
  3. [72]
    He has a criminal history which includes charges for assault and rape. He has been convicted in relation to some assault matters, but the rape charges were not proceeded with. Those matters spanned a period between 1995 and 2015. He has not been the subject of any charges since January 2015.
  4. [73]
    He is a mature aboriginal man who grew up in a rural area where he says he experienced racism. He has been strongly involved in indigenous affairs for most of his working life, and has been actively involved in a contested native title claim involving his extended family.
  5. [74]
    He currently resides in a state other than Queensland, but evidence presented at the hearing indicates that he requires a Blue Card in Queensland to conduct his work in this state as an interviewer for a national aboriginal research project in which he has been heavily involved.
  6. [75]
    NWS is a mature man, and is a father to 2 of his own children, who he does not live with, but who he is actively involved with.
  7. [76]
    He has not received any custodial sentence in relation to the offences against the person with which he was charged, and the penalties have included good behaviour bonds, or no convictions have been recorded in several instances. The most serious charges, as to rape, were not proceeded with, and he says that he would have fully contested those charges if they had proceeded.
  8. [77]
    The property offence involving damage to the relevant state’s Native Title Services offices is the most recent offence (although it was about seven years ago), and is disturbing in that it occurred in a public place, and indicates a violent lack of control at the time.
  9. [78]
    As was submitted for NWS, two areas of concern as to his suitability to be  approved to work with children relate to his ongoing use of marijuana and alcohol, and as to any propensity for violence.
  10. [79]
    There appear to be two common themes which reappear in the assault matters which relate to his being affected by alcohol at the time, and/or responding to what he saw as racial slurs.
  11. [80]
    Strong character evidence in support of NWS was given by a long time friend of his, Dr V, who is a noted aboriginal academic; and by Ms L who is a senior government officer involved in indigenous affairs. They each said that they were aware of NWS criminal history, but nevertheless considered that he held a respected and valuable role in the aboriginal community, and posed no risk in working with children.
  12. [81]
    Psychiatric evidence was given by Dr C. He was not available for cross examination, so consideration has to be given as to the weight to be applied to his evidence.
  13. [82]
    Dr C referred to NWS’s issues as to alcohol and marijuana use, and anger management. He did not express any specific concerns as to those matters resulting in children being put at risk.
  14. [83]
    I am influenced by the evidence of Dr C to view favourably his comments as to NWS generally, as to NWS having remorse and insight into his offences, as to NWS having protective factors in place, and as to the likelihood of NWS not reoffending.
  15. [84]
    NWS continues to use alcohol. The mere use of alcohol on a responsible basis in itself may not constitute a risk – it is the abuse of alcohol, or use of it in an inappropriate setting, or the manifestation of antisocial behaviour when affected by alcohol, that usually constitutes a risk in working with children as it deprives the user of appropriate cognitive awareness, response and role modelling.
  16. [85]
    The evidence of NWS is that he uses alcohol in moderation. There is no evidence to indicate that he has an ongoing problem with alcohol, and Dr C did not indicate any particular concern in relation to his use of it.
  17. [86]
    The use of marijuana by NWS is more problematic, as he freely admitted to using marijuana on an annual basis. It is unclear how long each period of usage continues. It would obviously be more comforting if NWS was not to use marijuana at all. Marijuana is an illicit drug, and intensive use of it can lead to serious adverse mental health outcomes.
  18. [87]
    I am puzzled as to why NWS has continued his marijuana use at all. I find this to be amongst the most problematic of all the risk factors which I have to consider.
  19. [88]
    It was submitted for NWS that he does not use cannabis in circumstances where children may be present because it is inappropriate and not an example to be set. If it is accepted that NWS does not use marijuana when children are present, and if that can be seen to extend to a proposition that he would not be affected by marijuana when working with children, the risk posed by his continued use may be reduced, but cannot be ignored.
  20. [89]
    In his past, NWS has displayed violent behaviour. As discussed, this has generally been in the context of responding to a racial slur. NWS says that he appreciates that violence is not an appropriate response even in such a situation, and that he now adopts alternative strategies such as talking to the perpetrator.
  21. [90]
    The events which occurred at the relevant state’s Native Title Services office involved what could be described as ‘a rampage’ where NWS took out what he described as frustration by damaging furniture and fittings at the office. This event should be viewed in the context of NWS being passionately involved in a contested and protracted native title dispute with significant implications for the standing and future of his extended family. That context is no excuse for his behaviour, and NWS says that he recognised that he had become too involved in the matter, and thereafter withdrew from the native title negotiations.
  22. [91]
    The native title matter has now been resolved, and those accompanied specific triggers would presumably not re-occur. NWS appears contrite in his evidence as to that event, and as to the realisation that he behaved wrongly.
  23. [92]
    The specific work that NWS has been engaged in, and which he wishes to be able to continue working in, relates to the significant national research study being conducted into the experiences of aboriginal children. That work is of national importance, and may provide valuable data and insight for the formulation of future policy which is to the benefit to both the indigenous Australian and broader Australian community.
  24. [93]
    Ms L gave compelling evidence that in order for the research work to be conducted successfully, that interviewers are required to have empathy of indigenous culture, and who would be welcomed into indigenous homes, and that she considered that NWS had those characteristics and performed a valuable role.
  25. [94]
    The picture that then results that NWS is a mature aboriginal man who has been performing valuable work within his community, who openly acknowledges his past criminal history, and who says that he recognises the error of misuse of alcohol and the use of violence in confrontational situations, and has adopted protective strategies to avoid re-offending.
  26. [95]
    The tribunal must be satisfied that an exceptional case exists for a positive notice not to be issued. In this matter, there are matters of concern as to NWS continued use of marijuana (even if only on a limited and infrequent basis) and lingering concerns as to his anger management in the face of provocation. Those matters of concern are to be balanced against his demonstrated good behaviour since January 2015, and his expressions of remorse and insight into his former use of alcohol and violence.
  27. [96]
    The situation is not unproblematic, but it is necessary to view NWS’ history and behaviours in the context of his experience of racism as a young aboriginal man, his passionate involvement in a disputed native title claim, and his unblemished history of working closely with young indigenous persons in a significant and valuable ongoing research project for many years.
  28. [97]
    Overall, I am satisfied that, on balance, the various concerns I have discussed do not manifest in a risk to children if NWS was to obtain a Blue Card.
  29. [98]
    I find that there is not an exceptional case, and will set aside the decision of the Department and substitute a new decision accordingly.

Non-publication order

  1. [99]
    A non-publication order has been sought on behalf of NWS, and is not opposed by the Department.
  1. [100]
    I consider that publication of matters contained in the police reports may lead to identification of children involved, and also of NWS and members of his community, which could endanger the physical or mental or safety of a person, or be contrary to the public interest.
  1. [101]
    I make a non-publication order in terms as submitted by Counsel for NWS, as follows:

The publication of the contents of any document or thing filed in or produced to the tribunal, and any evidence given to the tribunal by any witness, is prohibited to the extent that it could lead to the disclosure of the identity of the applicant, or any member of the applicant’s family or any non-party to the proceedings, including any child, pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Footnotes

[1]Reasons, Department of Justice and Attorney-General – blue card services, 30 January 2020, [6]

[2]NWS life story, 27 March 2020, [21].

[3]Ibid [25].

[4]Ibid [27]-[28].

[5]Ibid [33].

[6]Ibid [35]-[37].

[7]Ibid [39].

[8]Ibid [41].

[9]Ibid [42].

[10]Ibid [47].

[11]Ibid [50].

[12] Ibid [53].

[13] Ibid [55].

[14] Report Dr C, 22 June 2020, p 2.

[15] Ibid p 2.

[16] Ibid p 4-5.

[17] Ibid p 6.

[18] Ibid p 6.

[19] Ibid p 7.

[20] Ibid p 7.

[21]Applicant’s submissions 30 April 2021 [113]-[115].

[22]Ibid [122].

[23] Ibid [124].

[24] Ibid [126].

[25] Respondent's outline of submissions, 16 April 2021, [64].

[26]Ibid [66].

[27]Ibid [68].

[28] Ibid [69].

[29] Ibid [82].

[30]Ibid [115].

Close

Editorial Notes

  • Published Case Name:

    NWS v Director-General Department of Justice and Attorney-General

  • Shortened Case Name:

    NWS v Director-General Department of Justice and Attorney-General

  • MNC:

    [2022] QCAT 18

  • Court:

    QCAT

  • Judge(s):

    Member Paratz AM

  • Date:

    14 Jan 2022

Appeal Status

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

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v Cheong (No 2) [2022] QCAT 3542 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.