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CA v Director-General, Department of Justice and Attorney General[2022] QCAT 305

CA v Director-General, Department of Justice and Attorney General[2022] QCAT 305

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

CA v Director-General, Department of Justice and Attorney General [2022] QCAT 305

PARTIES:

ca

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML390-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

9 August 2022

HEARING DATE:

12 April 2022

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that CA’s case is exceptional within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Publication of the name or identifying information of CA or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – working with children clearance – where issue of negative notice – application for review – criminal history – convictions for assault occasioning bodily harm, in company, assault occasioning bodily harm – domestic violence offence and common assault – domestic violence offence – where not categorised as serious offences nor disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ within the meaning of s 221(2) of the Working With Children (Risk Management and Screening) Act 2000 (Qld) warranting departure from the general rule that a working with children clearance must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Human Rights Act 2019 (Qld), s 8, s 13, s 25, s 26(2), 36(2), s 48, s 58

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 15, s 16, s 17, s 221, s 226, s 353, s 354, s 360, s 361, s 580, Schedule 7

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(1), s 18(1), s 19, s 20, s 21, s 66

Commission for Children and Young People Bill 2000, Explanatory Notes

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

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

Chief Executive Officer, Department of Child Protection v Scott No.2 [2008] WASCA 171

Commissioner for Young People v Storrs [2011] QCATA 28

Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186

Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99

Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25

Re FAA [2006] QCST 15

Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257

APPEARANCES &

REPRESENTATION:

Applicant:

T.D. Maltby, solicitor, Resolute Legal

Respondent:

C.A. Davis, In-house solicitor, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General (‘the chief executive officer’), Department of Justice and Attorney General (‘the respondent’) dated 31 August 2020, that the case of CA (‘the applicant’) was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    The applicant is a woman, aged approximately 28 years.
  3. [3]
    The respondent issued the applicant with a positive notice and blue card under the WWC Act in 2009, 2012, 2015 and most recently on 10 August 2018.
  4. [4]
    The respondent was subsequently notified by the Queensland Police Service that the applicant’s police information had changed. The applicant has a criminal history which is described in detail later in these reasons. Accordingly, the respondent re-assessed the applicant’s eligibility to be issued with a positive notice and blue card pursuant to ss 221(1) and (2) of the WWC Act, having regard to the fact that offences with which the applicant had been charged or convicted were neither serious offences[1] nor disqualifying offences.[2]
  5. [5]
    By letter dated 31 August 2020, the respondent advised the applicant that it was satisfied that the applicant’s case was an exceptional case within the meaning of s 221(2) of the WWC Act in which it would not be in the best interests of children for a positive notice to be issued. The respondent advised the applicant of its decision to cancel the positive notice and blue card and to issue a negative notice.
  6. [6]
    The applicant has applied to the Queensland Civil and Administrative Tribunal (‘the Tribunal’) for a review of that decision.
  7. [7]
    Since recent amendments to the WWC Act, a positive notice is now referred to as a working with children clearance under the WWC Act.[3]

Jurisdiction

  1. [8]
    A person who is not a ‘disqualified person’[4] may apply, within the prescribed 28-day time period, for a review of a chapter 8 reviewable decision,[5] which includes a decision as to whether or not there is an exceptional case for the person if, because of the decision, the respondent issued a negative notice.[6]
  2. [9]
    The applicant has satisfied the prerequisites to apply for the review because the applicant is not a ‘disqualified person’ and the applicant applied to the Tribunal for review within the prescribed 28-day time limit.[7]
  3. [10]
    Accordingly, the Tribunal has jurisdiction to decide the review pursuant to s 17(1) and s 18(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and s 354(1) of the WWC Act.
  4. [11]
    The decision under review is the decision of the respondent as to whether or not there is an exceptional case for the applicant, because that decision resulted in her being issued with the negative notice.[8]

The law

Law relating to review generally

  1. [12]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[9] Pursuant to ss 580(1) and (2) WWC Act (the transitional provisions), the Tribunal is required to apply the WWC Act, as amended, in relation to the review.
  2. [13]
    The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[10]
  3. [14]
    The purpose of the review is to produce the correct and preferable decision.[11]
  4. [15]
    The Tribunal must decide the review by way of a fresh hearing on the merits.[12]
  5. [16]
    The role of the respondent is to assist the Tribunal to make its decision and includes providing the Tribunal with relevant information, documents and things.[13]

Law relating to blue cards specifically

  1. [17]
    The WWC Act effectively provides that a working with children clearance must be issued in circumstances which include[14] where a person has been charged or convicted with an offence other than a serious offence,[15] unless the respondent is satisfied it is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued. In that case, a negative notice must be issued.[16]
  2. [18]
    The relevant test is set out in ss 221of the WWC Act, which provides:
  1. (1)
    The chief executive must issue a working with children clearance to the person if the chief executive-
    1. is not aware of any relevant information about the person; or
    2. is not required to issue a negative notice to the person under subsection (2).
  2. (2)
    The chief executive must issue a negative notice to the person if the chief executive-
    1. is aware of relevant information about the person; and
    2. is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person.
  3. (3)
    For subsections (1) and (2), the following information about the person is relevant information-
    1. information that the person has-
      1. (i)
        a charge for an offence other than a disqualifying offence; or
      1. (ii)
        a charge for a disqualifying offence that has been dealt with other than by a conviction; or

Note-

For charges for disqualifying offences that have not been dealt with, see chapter 7, part 4, division 4 and sections 199, 295(1) and 296.

  1. (iii)
    a conviction for an offence other than a serious offence;
  1. (b)
    investigative information;
  2. (c)
    domestic violence information;
  3. (d)
    disciplinary information;
  4. (e)
    other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person.
  1. [19]
    The term ‘exceptional case’ used in s 221(2) of the WWC Act is not defined in the WWC Act.
  2. [20]
    The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) defines ‘exceptional’ as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.
  3. [21]
    Section 226 of the WWC Act requires that regard must be had to certain matters in deciding whether or not there is an exceptional case for a person who is known to have been convicted of, or charged with, an offence. Section 226 provides:
  1. (1)
    This section applies if the chief executive –
    1. is deciding whether or not there is an exceptional case for the person; and
    2. is aware that the person has been convicted of, or charged with, an offence.
  2. (2)
    The chief executive must have regard to the following -
    1. in relation to the commission, or alleged commission, of an offence by the person-
      1. (i)
        whether it is a conviction or a charge;
      1. (ii)
        whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      1. (iii)
        when the offence was committed or is alleged to have been committed;
      1. (iv)
        the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      1. (v)
        in the case of a conviction - the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
    1. any information about the person given to the chief executive under section 318 or 319;
    1. any report about the person’s mental health given to the chief executive under section 335;
    2. any information about the person given to the chief executive under section 337 or 338;
    3. information about the person given to the chief executive under the Disability Services Act 2006, section 138ZG;
    4. anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [22]
    ‘Serious offence’ and ‘disqualifying offence’ are defined by Schedules 2 and 4, respectively, of the WWC Act.
  2. [23]
    ‘Charge’ is defined by Schedule 7 of the WWC Act to mean:

a charge in any form, including, for example, the following-

  1. (a)
    a charge on an arrest;
  1. (b)
    a notice to appear served under the Police Powers and Responsibilities Act 2000, section 382;
  1. (c)
    a complaint under the Justices Act 1886;
  1. (d)
    a charge by a court under the Justices Act 1886, section 42(1A), or another provision of an Act;
  1. (e)
    an indictment.
  1. [24]
    ‘Conviction’ is defined by Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
  2. [25]
    The Tribunal cannot go beyond convictions and must accept them as they are.[17] The Tribunal cannot now, in relation to the offence, accept a different version of events in relation to the facts concerning the commission of the offence.[18]
  3. [26]
    Other matters may be considered in addition to those listed in s 226 of the WWC Act.[19]
  4. [27]
    Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to:[20]

... the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here, quite obviously, designed to protect: children.

  1. [28]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland, including through the screening of persons employed in particular employment or carrying on particular businesses.[21]
  2. [29]
    The Explanatory Notes to the Bill introducing the WWC Act make it clear that infringement on the rights of individuals may be necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.[22]
  3. [30]
    The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency set out the approach that should be taken by the Tribunal in a review of a decision of whether there is an exceptional case:[23]

‘Exceptional case’ is not defined in the WWC Act. What constitutes an exceptional case is a matter of fact and degree. It is settled law that it is a broad discretion considering the merits in each case. Hardship or prejudice suffered by an applicant is irrelevant. What amounts to an exceptional case ‘must take it out and beyond the ordinary circumstances reasonably expected to occur’. It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual special. The passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.

  1. [31]
    In relation to comparable legislation, in Chief Executive Officer, Department of Child Protection v Scott (No.2), Buss J observed:[24]

The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.

  1. [32]
    The Tribunal should consider risk and protective factors when determining a review decision.[25]
  2. [33]
    The Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[26]
  3. [34]
    Neither party bears the onus in determining whether an exceptional case exists.[27]
  4. [35]
    The Tribunal must review a child-related employment decision[28] under the principle that the welfare and best interests of a child are paramount.[29]

Law relating to human rights

  1. [36]
    When conducting a review of a child-related employment decision, the Tribunal is a ‘public entity’ under the Human Rights Act 2019 (Qld) (‘HRA’) and the HRA applies.[30]
  2. [37]
    Accordingly, the Tribunal must interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[31]
  3. [38]
    Further, except when a different action or decision is required because of a statutory provision or other law, [32] the Tribunal must:[33]
    1. (a)
      act or make a decision in a way that is compatible with human rights; and
    2. (b)
      in making a decision, give proper consideration to a human right relevant to the decision, at least by identifying human rights that may be affected by the decision and considering whether the decision would be compatible with human rights.[34]
  4. [39]
    A decision will be compatible with human rights if it does not limit a human right or if it limits a human right in a way which is reasonable and justifiable under the HRA.[35]

Matters required to be considered by section 226 of the WWC Act

Whether the offence is a conviction or charge[36]

  1. [40]
    On 19 April 2021, the applicant was convicted of:
    1. (a)
      assault occasioning bodily harm, in company (on 7 March 2019);
    1. (b)
      assault occasioning bodily harm – domestic violence offence (on 7 March 2019); and
    2. (c)
      common assault – domestic violence offence (on 7 March 2019).
  2. [41]
    The convictions were made upon the applicant entering a plea of guilty on the basis of an agreed statement of facts.
  3. [42]
    The convictions are each a ‘conviction’ for the purposes of the WWC Act notwithstanding that no conviction was recorded.[37]
  4. [43]
    On 19 April 2021, a nolle prosequi was entered in relation to the following additional charges arising out of the same incident, which were discharged:
    1. (a)
      assaults occasioning bodily harm whilst armed/in company – domestic violence offence (on 7 March 2019);
    1. (b)
      common assault – domestic violence offence (on 7 March 2019); and
    2. (c)
      assaults occasioning bodily harm – domestic violence offence (on 7 March 2019).
  5. [44]
    The nature of the applicant’s offending is considered in more detail below.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence[38]

  1. [45]
    The offences with which the applicant has been charged or convicted are neither serious offences[39] nor disqualifying offences[40] under the WWC Act.

When the offence was committed or is alleged to have been committed[41]

  1. [46]
    All of the offences were committed or alleged to have been committed on 7 March 2019.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children[42]

  1. [47]
    Documents that have been produced in this proceeding set out the nature and circumstances of the applicant’s offending.
  2. [48]
    At the time of the offending on 7 March 2019, the applicant and her husband (‘ex-husband’) were going through a separation. The applicant’s ex-husband had remained living in the matrimonial home (‘the home’) and the applicant had moved out. The applicant’s offending occurred during an incident at the home which involved the applicant, the applicant’s brother (who was co-accused), the ex-husband and the ex-husband’s sister.
  3. [49]
    At approximately 5.30pm on 7 March 2019, the applicant’s ex-husband, in the company of his sister, returned to the home to find the applicant’s vehicle parked in the driveway. The ex-husband parked his vehicle behind the applicant’s vehicle, effectively blocking it from leaving. The ex-husband observed that the front door was open and had been damaged to gain entry. The applicant exited the home and telephoned her brother. The ex-husband entered the home and walked upstairs to check the home and his belongings. The ex-husband’s sister telephoned the police.
  4. [50]
    A short time later, the applicant’s brother attended, entered the home, and walked up the internal stairs to where the ex-husband was. The ex-husband used his mobile telephone to record the applicant’s brother. The applicant’s brother said “you want a go cunt?” and moved towards the ex-husband. The ex-husband tried to walk past the applicant’s brother to go down the stairs. The applicant’s brother grabbed the ex-husband by the front of his shirt with his right hand and tried to grab the ex-husband’s phone with his left hand. Two buttons on the ex-husband’s shirt ripped off and the applicant’s brother lost his grip.
  5. [51]
    The ex-husband tried to go down the stairs and walk about three stairs down when the applicant’s brother grabbed the collar of the applicant’s brother’s shirt and leg-swiped him, causing the ex-husband to fall down the stairs. The ex-husband got up and tried to walk out of the front door. The applicant was then on the inside of the front door, holding the screen door handle, which prevented the ex-husband from leaving and the ex-husband’s sister from entering the home.
  6. [52]
    The sentencing remarks of His Honour, Judge Coker of the District Court, noted that:

the applicant’s brother pulled the ex-husband to the ground and held him on the ground using his legs;

the applicant’s brother began to punch the ex-husband to the side of his face, while trying to “pry” his telephone from his hand, and

the applicant was “involved in relation to that”.

  1. [53]
    In relation to the applicant, Judge Coker stated that:

“On the 7th of March 2019, in the circumstance of, no doubt, a difficult situation as between you [applicant], and your former partner... the situation of you wishing to collect certain items from the home and there being difficult exchanges between you and your former husband are to be taken into consideration, and you asked your brother to intervene in circumstances where he might, rightly or wrongly but genuinely, I believe, thought that there was a risk to you, you telling him that you were unable to leave the property because of the fact that the complainant... had parked his vehicle behind you.

I note a few matters in relation to that particular situation... on the afternoon of the 7th March, when [the ex-husband] arrived home with his sister, you were standing at the front door. The front door of the house had been damaged. ... it was a jointly owned property and the door was open, and [the ex-husband], had broken his key off in the door lock to stop you from entering the house that morning. I see that as not necessarily a criminal offence but a provocative one in that it was clearly designed to ensure that you could not enter into property which you had, in my assessment, a lawful right to enter. And it... puts into perspective the exchanges thereafter that occurred. Make no mistake, that doesn’t justify what occurred on the 7th of March 2019 involving the two of you and [the ex-husband and his sister], but it does bring into stark example the heated emotions that were at play, perhaps involving all four of you at the time of this offending.

...

... I must say in relation to you [applicant], that in relation to the assaults upon the woman who, to all intents and purposes was your sister-in-law, involved you pushing her up against stair rails by her neck to an extent that it broke the stair rail and elbowing her to her arms. I note also and accept, however, that you did not come out of it unscathed, in that you were, obviously, struck and that it was clear that the indications were that the blows were of such a significant nature that treatment was required by you. It is also clear that you and [the ex-husband’s sister] continued in your scuffles, you grabbing her by her ponytail, swinging her around, which cause some degree of whiplash and a sprained neck, whilst punching her and then taking hold of her hair again, scratching her forehead which caused what’s described as a superficial laceration, but then dragging her by her hair across the driveway, causing an abrasion to her ankle and her left knee.

It must be for both of you but I would think particularly for you, [applicant], extremely embarrassing to have such circumstances read out as to the conduct of all of you in relation to this matter. But, as I say, I certainly take it in the context of there being a continuing background of matrimonial dispute that involved all four of you to varying degrees and also that it was certainly not a one-way street in relation to the provocation and the actions that were being perpetrated in relation to the offending.”

(additions denoted by square brackets)

  1. [54]
    The applicant’s offending involved her and her brother physically assaulting her ex-husband and his sister during an altercation arising from the breakdown of the relationship. The offending occurred at the home and no children were present at the time of the offending.
  2. [55]
    The applicant’s offending reflects adversely on her ability to judge appropriate behaviour, deal with conflict in a constructive manner and exercise self-control. Such skills are particularly important when working in areas of regulated employment and business as they contribute to the creation of a safe and protective environment for children and young people.
  3. [56]
    The relevance of the applicant’s offending to employment, or carrying on a business, that involves or may involve children is that children are at increased risk of physical and psychological harm by being cared for by a person who acts aggressively and who is unable to manage their anger and respond to stressors in a safe and appropriate manner. The applicant’s offending reflects a disregard for the rules of public safety and raises concerns regarding her ability to judge appropriate behaviour. Further, it models unsafe and unlawful behaviour.
  4. [57]
    As a whole, the applicant’s offending gives rise to concerns regarding her ability to judge safe and appropriate behaviour, to provide a safe and protective environment for children and to present as a positive role model. It has been recognised by the Tribunal that ‘It can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong’.[43]
  5. [58]
    Behaviour of that nature is inconsistent with the standard of behaviour required of a person entrusted with the care of children. It raises serious concerns about the applicant’s ability to provide a protective environment for children and ensure their safety and wellbeing.

In the case of a conviction, the penalty imposed by the court, and the court’s reasons not to impose an imprisonment or not to make a disqualification order under section 357[44]

  1. [59]
    The applicant was fined a total of $1,000, comprising:
    1. (a)
      a fine of $500 in respect of her conviction for assault occasioning bodily harm, in company;
    1. (b)
      a fine of $250 in respect of her conviction for assault occasioning bodily harm – domestic violence offence; and
    2. (c)
      a fine of $250 in respect of her conviction for common assault – domestic violence offence.
  2. [60]
    No convictions were recorded.
  3. [61]
    The Court’s reasoning for imposing these penalties were outlined in the sentencing remarks. In that regard, Judge Coker stated that:

“... I note, in particular, the letter of apology that has been provided... it clearly shows your acceptance and responsibility for the events that occurred on the 7th of March 2019, and, more particularly, it provides a very clear indication of the consequences which have been far reaching in relation to you, noting that you have real experience and obvious real ability in relation to your work as an early childhood teacher, and that the incident of, perhaps, a few minutes or no more than, perhaps, 30 minutes, on the 7th of March 2019 has had the most dreadful of consequences for you and, perhaps, for others as well, noting the obvious abilities that were shown and the regard that was displayed in relation to you and your capacity to provide for the children of the locality in which you lived.

I note, also, that you have attended at a family relationship service counselling facility and have completed the course, not so much in relation to children’s issues but to give you a better grasp and ability to deal with the difficulties that might have at the time, related to you and your interactions with your former partner. And I note, also, that you have completed an online 30 hour anger management program, again, hopefully, to assist in relation to dealing with issues that might otherwise give rise to difficulties. Otherwise, the various references also provided in relation to you by both family and friends, and co-workers, all provide a glowing testament as to your capacities as an early childhood teacher and of the very real consequences that have been experienced by you as a result of those matters.

...

... it is clear that if one is to look at the entirety of the consequences that flowed in relation to this matter, noting, as I do, particularly, that you also suffered physical injuries as a result of the exchange between you and [the ex-husband’s sister] but, perhaps, most significantly, the dreadful consequences that it has had in relation to your employment and, perhaps, your own self-esteem in relation to the offending, I am of the view that it is not appropriate that there should be actual periods of imprisonment served...

...

In relation to you, [applicant], the offending is serious but the consequences and the circumstances in relation to it are such that I have decided, perhaps, to take an approach which I would not normally consider in relation to a matter sych as this. An assault occasioning bodily harm in company with another, as I indicated, carries a maximum penalty of 10 years. It is a serious offence and I would be hard pressed, normally, to assess a situation where a period of imprisonment might not be appropriate, though, of course, I would hasten to add, in the circumstances here, without any requirement for actual time to be served. Alternatively, it might be, as suggested that a period of probation would be of assistance in order to provide supervision and guidance to ensure that there is not a reoccurrence of offending of this nature but everything that I have read, including your own letter of apology, the various pieces of correspondence and references from family as well as, particularly, the courses you have properly engaged in yourself, have given me a pause to reassess the situation here such that I am not of the view that further supervision is required. It is, therefore... one of those rare occasions where I would consider that.. the appropriate course to follow would be to... impose a fine in relation to the offending.

In relation... to count 3, the most serious of the offending, I intend to impose a fine of $500 and, in relation to counts 4 and 6, the assault and the assault occasioning bodily harm, in relation to each, to impose a fine of $250. A total, therefore, of $1,000... More significantly, in relation to you, however, is the question of whether or not a conviction should be recorded. I found myself struggling in relation to that because... it is offending of significant and serious nature that arises here. But the consequences have been dire for you and, it seems to me, that the penalties that you carry as a direct result of the foolishness of the actions on the 7th of March 2019 are punishment, which of themselves are far more significant than anything that I might appropriately order in relation to this matter. More particularly, you are, to use the vernacular, a cleanskin, you have not been before the court, you are a young woman with, clearly, very significant potential and a great deal that you can contribute to our community. It is, therefore, one of those rare occasions where I would consider that it is appropriate that I should exercise the discretion available to me and I do not intend to record a conviction in relation to any of the matters relating to you.”

(additions denoted by square brackets)

Criminal history information given under section 318 or section 319 of the WWC Act

No criminal history information was requested or given under sections 318 or 319 of the WWC Act.

Mental health examination information given under section 335 of the WWC Act

  1. [62]
    No information was requested or received pursuant to that section 335 of the WWC Act.

Mental Health Court and Mental Health Review Tribunal information given under sections 337 or 338 of the WWC Act

  1. [63]
    No information was requested or received pursuant to sections 337 or 338 of the WWC Act.

Anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person

  1. [64]
    No additional matters which are considered relevant apart from those matters stated herein.

Materials provided by way of Notice to Produce

Material from the Magistrates Court

  1. [65]
    In response to a Notice to Produce, the Magistrates Court produced material which evidenced that on 11 March 2019, a Temporary Protection Order was made and, on 3 June 2019, a Protection Order, was made. They both named the applicant’s ex-husband as the aggrieved and the applicant as the respondent. The Protection Order expired on 2 June 2021. Those orders were made in the circumstances of the applicant’s offending behaviour on 7 March 2019.
  2. [66]
    The Magistrates Court also produced material which evidenced that on 16 May 2019, an application for a Domestic Violence Protection Order, which named the applicant as the aggrieved and the applicant’s ex-husband as the respondent, was struck out. The application stated that the applicant’s ex-husband had been “aggressive towards me through social & emotion violence. He would yell and throw things. I do not feel safe and am constantly looking over my shoulder as he knows where I am and where my family live”.
  3. [67]
    The relevance of the material is that it indicates that the applicant had aggressive tendencies and engaged in domestic violence related behaviours in the context of the incident on 7 March 2019. The material reflects adversely on the applicant’s ability to provide a safe and protective environment for children under her care.

Material from the Queensland Police Service (‘QPS’)

  1. [68]
    In response to a Notice to Produce, the QPS produced material which comprised the QPS occurrence report and the court brief in relation to the incident on 7 March 2019 and the applicant’s offending in that regard.

Witness evidence

The applicant

  1. [69]
    The applicant gave evidence by way of a written statement and oral evidence including cross-examination.
  2. [70]
    The applicant is approximately 28 years old.
  3. [71]
    After graduating from High School, the applicant worked in child care. The applicant completed a Certificate III in Children’s Services in 2009 and completed a Diploma in Children’s Services in 2010. In 2019, the applicant commenced a Bachelor in Early Education with a view to becoming a school teacher. During the period from 2010 to 2019, the applicant advanced in her career working with children in roles such as assistant educator, lead educator, teacher, assistance director and teacher/ director.
  4. [72]
    The applicant and her ex-husband commenced a relationship in 2010, were married in 2016 and subsequently purchased the home in their joint names.
  5. [73]
    Over time, the applicant’s ex-husband become violent and abusive towards her. In early 2019, the applicant moved out of the home. However, the applicant left some personal belongings and pets at the home and regularly returned to the home.
  6. [74]
    In early February 2019, the applicant engaged a solicitor regarding the separation and property settlement between her and her ex-husband.
  7. [75]
    On 21 February 2019, the applicant’s car broke down and she was unable to attend the home for a short period of time. She later arranged for her car to be towed to the home for storage.
  8. [76]
    On 26 February 2019, the applicant instructed her solicitor to forward draft consent orders to her ex-husband which proposed that she retain the home and refinance the mortgage into her sole name. Subsequently, the applicant noticed that a number of items of value were missing from the home and she believed that her ex-husband had taken them. On 26 February 2019, there was an aggressive altercation between the ex-husband and the applicant’s brother when the applicant attended at the home with her brother.
  9. [77]
    On 6 March 2019, the applicant attended the home with her mother and collected items of property.
  10. [78]
    On 7 March 2019, the applicant attended the home. She found that the electric gate had been disconnected and that a key had been snapped in the lock of the front door. The applicant parked her car outside the gate and opened the front door, causing some damage to the door.
  11. [79]
    The ex-husband and his sister arrived at the home. The ex-husband parked his car directly behind the applicant’s car, blocking it’s exit. The applicant asked her ex-husband to move his car but he refused. The applicant telephoned her brother and requested him to attend.
  12. [80]
    The ex-husband went into the home. The applicant’s brother arrived shortly afterwards and he also went into the home. There was an aggressive physical altercation between them in the home.
  13. [81]
    The applicant held the front door to prevent the ex-husband’s sister from entering the home. The ex-husband’s sister gained entry and there was a physical altercation between the applicant and the sister and they physically assaulted each other. The ex-husband’s sister hit the applicant on the head with a metal wrench.
  14. [82]
    Police attended the home and the applicant was taken to hospital for treatment of her head injury.
  15. [83]
    A Police Protection Notice was issued on 7 March 2019. Upon application of the police, on 3 June 2019, a Domestic Violence Protection Order was made which named the applicant as respondent and her ex-husband as the aggrieved. The applicant did not contest the making of the order, which was made without admissions. The applicant subsequently complied with the conditions of the order and it expired on 2 June 2021 without incident.
  16. [84]
    On 31 August 2020, the respondent notified the applicant that her blue card had been cancelled and a negative notice was issued as a result of the change in police information.
  17. [85]
    The applicant and her brother were later charged with various assault offences. After receiving legal advice, the applicant pleaded guilty to three offences before the District Court. On 19 May 2021, Judge Coker of the District Court sentenced the applicant in respect of three offences as follows: assault occasioning bodily harm in company for which the applicant was fined $500; assault occasioning bodily harm – domestic violence offence for which the applicant was fined $250, and common assault – domestic violence offence for which the applicant was fined $250. No conviction was recorded.
  18. [86]
    In sentencing remarks, Judge Coker referred to: the applicant’s letter of apology; the applicant’s attendance at Family and Relationship Counselling, and the applicant’s attendance at an anger management program.
  19. [87]
    The applicant has no other criminal history and her actions on 7 March 2019 were isolated and related to the marital breakdown and property dispute. The applicant accepts that her actions on that day were caused by her poor decisions.
  20. [88]
    The applicant acknowledged that her behaviour on 7 March 2019 was unjustified, inappropriate, immature and not within community expectations. Through counselling, she realised that her relationship with her ex-husband was toxic, she did not have the ability to exercise sufficient self-control to remove herself from the situation and that calling on her brother escalated the tense situation.
  21. [89]
    The applicant stated that she has undertaken an anger management course and an online relationship counselling program which has taught her to deal with relationship issues in a more constructive manner. The applicant now understands the components of a healthy relationship and how to better deal with conflict situations including how to exercise self-control in heightened situations. The applicant has also learnt to better express herself through open communication. The applicant now realises that those matters were a significant contributing factor to the events on 7 March 2019.
  22. [90]
    With the benefit of the courses, counselling sessions and her recent work for a supermarket, the applicant believes that she has now gained communication, people and situational skills. She has developed confidence interacting with people and in her communication skills, which she now applies to her interpersonal relationships. The applicant is now empowered with tools to prevent an inappropriate reaction in the future.
  23. [91]
    The applicant now has no contact with her ex-husband. However, in the event that the applicant is faced with a situation similar to the circumstances of 7 March 2019, she believes that she would no longer react in the same manner.
  24. [92]
    The applicant engaged a psychologist to provide an independent report.
  25. [93]
    The applicant seeks a blue card so that she can pursue her dream of becoming a teacher. She is confident that she could provide a safe environment for children and young people and there is little risk of repetition of her offending behaviour.
  26. [94]
    A statement of attendance dated 3 October 2019 issued by a family and relationships counselling service, Centacare North Queensland, stated that the applicant participated in two sessions of family and relationship counselling between 16 September 2019 and 30 September 2019.
  27. [95]
    A certificate dated 16 April 2021 issued by the Centre of Solutions, stated that the applicant successfully completed a 30 hour anger management program.
  28. [96]
    During cross-examination, the applicant stated that her support network included her mother, brother, current partner, current work colleagues and former work colleagues.
  29. [97]
    The applicant stated that she did not provide any documents to BC, the psychologist, but did tell him about her offending and offences.
  30. [98]
    The applicant stated that the offending occurred in circumstances of a marital separation and property settlement negotiations including in relation to the marital home. The applicant stated that she still retained part-ownership of the home and had some items of property and pet chickens there. The applicant intended to deliver her broken vehicle to the home for storage and to depart before her ex-husband arrived. The applicant had forewarned her ex-husband that she would be attending the home to deliver her vehicle. The applicant had asked her ex-husband to leave the gate open. When she arrived at the home she found that her ex-husband had left the gate locked, and snapped off the key in the front door lock. The applicant entered the home because she wanted to check on it. The applicant’s ex-husband and his sister arrived and parked behind her car, effectively blocking her exit. The applicant’s ex-husband refused her request to move his car. The applicant telephoned her brother, asking him to attend because she wanted a witness. The applicant’s ex-husband and the applicant’s brother engaged in a physical altercation in the home. The applicant stood at the front door and tried to block the ex-husband’s sister from entering the home. The applicant and the ex-husband’s sister engaged in a physical altercation. The ex-husband’s sister hit the applicant on her head with a wrench. Using her back, the applicant pushed the ex-husband’s sister away onto the stairs. The applicant denied causing the stair rails to break and stated that they were broken previously. The applicant admitted grabbing the ex-husband’s sister by her pony-tail but denied swinging her around and dragging her by the pony-tail. The applicant denied that she punched or kicked her ex-husband or his sister. The applicant stated that she acted in defence of her brother. The applicant stated that, in retrospect, she wished that she had just left the property to avoid the altercation.
  31. [99]
    The applicant agreed that she had pleaded guilty to charges on the basis of a statement of facts but said that she does not now agree with the statement of facts, in particular the allegation that the applicant assaulted her ex-husband’s sister. The applicant said that at the time of her guilty plea, she did not properly understand that she engaged in assault.
  32. [100]
    The applicant acknowledged that she was respondent to a domestic violence order. The applicant acknowledged that her actions had been wrong and unjustified and that she had made poor choices.
  33. [101]
    The applicant stated that the consequences of her actions included losing her blue card, losing her job and career, being unable to collect her vehicle due to the domestic violence order and significant physical injuries to her head.
  34. [102]
    The applicant confirmed that in April 2021, she completed a thirty hour anger-management course. In September 2019, she completed two sessions of family and relationship counselling.
  35. [103]
    During re-examination, the applicant stated that she is now in a positive relationship with her current partner.
  36. [104]
    The applicant stated that she has had not engaged in any other offending behaviour. The applicant said that she did not contest the making of the domestic violence order naming her as respondent in order because she felt it was in everyone’s best interests and to “keep the peace”.
  37. [105]
    The applicant stated that if she now faced similar circumstances, she would act differently and leave.
  38. [106]
    The applicant acknowledged that at the time, she had gone into “fight/flight mode and not thought clearly”. She said that she has since recognised triggers and how her brain worked when it was under extreme stress.
  39. [107]
    The applicant stated that she is now able to manage high stress situations in her work without getting annoyed or angry. She is able to ask for assistance and make sure that she is not under significant stress.

BC, Psychologist

  1. [108]
    BC (‘the psychologist’) gave evidence by way of a report dated 15 June 2021 and oral evidence including cross-examination.
  2. [109]
    The psychologist was engaged by the applicant to provide an independent report to the Tribunal, which she prepared on the basis of one face-to-face interview with the applicant and a number of assessments completed by the applicant.
  3. [110]
    It was not apparent from the psychologist’s report that he read or considered the statement of reasons issued by the respondent in relation to it’s decision to issue a negative notice under the WWC Act.
  4. [111]
    It was not apparent from the psychologist’s report that he had an accurate and complete understanding of the events on 7 March 2019, the convictions and sentence ordered and the respondent’s concerns in relation to the applicant arising from those matters.
  5. [112]
    The psychologist stated that background information was that the applicant “previously had a negative event where she was assaulted, leading to an aggressive response. Since then, [the applicant] has worked hard to understand and manage her anger, and how endeavors [sic] to use assertive communication. Her want to teach again, is a major prognostic indicator of success as are her supportive family”.
  6. [113]
    The psychologist referred to a “traumatic event that happened 2.5 yrs ago”.
  7. [114]
    The psychologist stated that the applicant’s “responses regarding her previous traumatic experiences appeared truthful. She reported that following her successful legal challenge, she has no criminal charges”.
  8. [115]
    The psychologist stated that a Trauma Symptom Inventory-2 assessment (‘TSI-2’), which tested trauma related symptoms and behaviours, indicated that the applicant “may be able to manage her anxiety appropriately”, “may have the ability to form appropriate attachments with other people” and “currently has long periods of euthymic mood”. The psychologist stated that the TSI-2 scores suggested that there may be some underreporting of symptoms, however, the applicant’s responses matched the information provided during the clinical interview. The psychologist stated that the applicant’s TSI-2 scores suggested that she believes she relates with other people effectively and manages her emotions appropriately, which was supported by information provided during the clinical interview.
  9. [116]
    The psychologist stated that a Personality Assessment Inventory (‘PAI’), which assesses mental disorders, suggested that the applicant’s clinical profile was within normal limits, with no indications of significant psychopathology. The applicant’s responses suggested alcohol difficulties, which were explored during clinical interview and the applicant reported that she had never attended work under the influence of any substance, including alcohol. The applicant reported no anxiety symptoms. The psychologist stated that the applicant’s responses suggested that the applicant may not have answered in a forthright manner (underreporting) however noted that the responses matched the information provided during the clinical interview.
  10. [117]
    The psychologist stated that the applicant’s responses suggested an overall positive self-evaluation, however her negative self-evaluations may arise during stressful times. The psychologist said that the applicant’s personal style seemed best characterised as one of autonomy and balance and that her assertiveness, friendliness and concern for others seemed to be typical for that of normal adults. The applicant’s responses indicated that she may be experiencing a mild degree of stress, but she had a number of supportive relationships that appeared to serve as an effective buffer against the effects of that stress. The psychologist stated that the applicant’s responses suggested that her anger management was within normal range and fairly well-controlled without apparent difficulty. In the context of the clinical interview, the assessments did not indicate any diagnostic possibilities. The psychologist stated that it was apparent that the applicant had “made many positive life changes since the events of 2.5yrs ago, including developing herself as a person and maintaining positive supports. The results of her assessments support the hypothesis that [the applicant’s] insight is appropriate and that her current life choices are a positive prognostic indicator”.
  11. [118]
    In relation to the issue of the extent to which the applicant has insight into her offending behaviours and its impact on the society, the victim(s) and any children associated with her, the psychologist stated that it was apparent from the clinical interview that the applicant:

“has made positive life changes and has spent a lot of effort into improving her insight to an appropriate level. These changes support the idea that [the applicant] is not a risk towards other’s, in her personal or professional life. From the information provided by the assessments and the clinical interview, it is suggested that it is appropriate for [the applicant] to obtain the necessary documents such as the Blue Card...”.

(additions noted by square brackets)

  1. [119]
    In relation to whether any risk factors, or triggers, continue to be present which could contribute to a risk of further offending, the psychologist stated that the clinical interview and assessments indicated that the applicant:

“... has no current risk factors of triggers that may lead to her responding in an aggressive manner akin to the events that led to her loss of the Blue Card. Her previous negative experiences have led to [the applicant] putting extra effort into positive assertive communication”.

  1. [120]
    In relation to whether any protective factors are present to reduce the risk of further offending behaviours, the psychologist stated that the clinical interview and assessments suggested that the applicant’s:

“... insights into her emotions including anger and aggression has improved and is appropriate. Her protective factors include her communication with her mother and ... brother, with whom she identifies as a strong positive support, this combined with her improved insight suggest strong prognostic indicators of future positive life choices”.

  1. [121]
    In relation to whether any preventative strategies are used by the applicant to reduce her risk of further offending, the psychologist stated that the applicant:

“... reported she has taken many steps to reduce her risk of further offending. She has restarted hobbies that include exercise, camping, fishing, and gardening, has spent more time on family farm and has worked on improving her insight and self-image”.

  1. [122]
    Further, the psychologist stated that he “believes that [the applicant] has an appropriate insight that she can successfully work with children without reoffending”.
  2. [123]
    In cross-examination, the psychologist stated that he was unable to recall whether he had read the respondent’s written statement of reasons for the decision to issue a negative notice. the psychologist stated his understanding of an altercation between the applicant, her brother, her ex-husband and his sister at the applicant’s home in the context of a marriage separation. the psychologist stated that he understood that the applicant was assaulted and she had an “aggressive response” in the nature of a fight or flight response, however he could not recall whether her response was physical or verbal. The psychologist stated that he understood that, following a successful legal challenge, the applicant had ultimately been acquitted of criminal charges in relation to the event.

AB, friend and former co-worker

  1. [124]
    AB gave evidence by way of an unsigned statement and oral evidence including cross-examination.
  2. [125]
    AB stated that she has known the applicant for over six years. AB was the applicant’s ‘boss’ for approximately twelve months when the applicant worked as an Early Childhood Teacher. They had developed a friendship.
  3. [126]
    AB described the applicant as “one of the most dedicated people I know in our industry” and “an amazing educator”. AB described the applicant as having been actively involved in the community including charity and community initiatives.
  4. [127]
    AB said that she would employ the applicant again if she had the opportunity to do so.
  5. [128]
    In cross-examination, AB stated that she understood that the applicant had pleaded guilty to criminal charges relating to assault of her ex-husband and his sister.
  6. [129]
    AB stated that she had no concerns regarding the applicant working with children. AB said she had never seen the applicant lose her temper, even in stressful situations.

Other witnesses

  1. [130]
    The applicant’s mother, cousin and former work colleague each provided statements in support of the applicant but did not present for cross-examination. The applicant stated that she did not require those witnesses to present for cross-examination to avoid causing them unnecessary anxiety or difficulty.

Respondent’s submissions

  1. [131]
    The respondent submitted that:
    1. (a)
      the applicant’s offending was a risk factor which gave rise to concerns about her ability to provide a protective environment, to care for, to act protectively and to promote the best interests of children in her care;
    2. (b)
      the offending was of a violent and aggressive nature and involved physical assault in the context of a marital separation and altercation between the applicant, her brother, her ex-husband and his sister;
    3. (c)
      although the applicant was only ordered to pay fines and no conviction was recorded, the Court’s sentencing remarks indicated that the offending was of a “significant and serious nature” and a period of imprisonment was not outside the ambit of what might have been properly considered an exercise of discretion by a judge in relation to the matter;
    4. (d)
      the convictions reflect adversely on the applicant’s ability to judge appropriate behaviour, deal with conflict in a constructive manner, exercise self-control and present as a positive role model for children, and
    5. (e)
      the offending was relatively recent on 7 March 2019 and insufficient time has elapsed to be satisfied that the applicant will not engage in similar behaviour;
    6. (f)
      the applicant demonstrated minimal insight into the effects of her offending on others;
    7. (g)
      little weight should be attributed to the character references provided in support of the applicant because it is not apparent that they had correct and full knowledge of the offending and convictions;
    8. (h)
      the psychologist identified triggers for the applicant’s aggressive response which related to the aggression of her ex-husband’s sister, the fight between her brother and her ex-husband, “feeling trapped”, the relationship with her ex-husband and the behavioural choices of other people;
    9. (i)
      the psychologist identified protective factors being the applicant’s support network and the applicant’s insight and remorse;
    10. (j)
      little weight should be attributed to the evidence of the psychologist because:
      1. the psychologist did not consider the respondent’s written reasons for the decision;
      2. the psychologist’s opinion was based on an incorrect understanding that the applicant had been acquitted of charges;
      3. the psychologist was unable to say whether the applicant had been convicted of, or pleaded guilty to, any offences;
      4. the psychologist assessed the applicant over only a single session;
      5. the psychologist had no record and was unable to recall certain information, including the exact event that triggered the applicant’s aggressive response and whether the applicant’s response was physical or verbal;
      6. the psychometric tests conducted by the psychologist indicated that the applicant may have underreported information, symptoms or both;
      7. there must be some concern about the significance and effectiveness of the applicant’s mother and brother as a support network and protective factor in the future because the evidence indicates that they did not serve as a protective factor at the time of the offending and, indeed, the applicant’s brother was her co-accused in the assault offences, and
      8. the evidence at the hearing raises concerns about the significance of the applicant’s purported insight as a protective factor in the future because the applicant demonstrated minimal insight into the effects of her offending on others;
    11. (k)
      because of the unconditional and fully-transferrable nature of a blue card, the effect of issuing a working with children clearance and blue card to the applicant would mean that the applicant could work unsupervised in any child-related employment or conduct any child-related business under the WWC Act. The respondent submitted that the Tribunal must consider the transferability of notices under the WWC Act when having regard to the best interests of children;
    12. (l)
      a precautionary approach should be adopted by the Tribunal, and
    13. (m)
      having regard to the evidence as a whole, the applicant’s case is an ‘exceptional case’ in which it would not be in the best interests of children for a working with children clearance to issue.

Applicant’s submissions

  1. [132]
    The applicant submitted that:
    1. (a)
      the applicant’s conviction was on the applicant’s timely plea of guilty;
    2. (b)
      the charges are not ‘serious offences’ for the purposes of s 221 of the WWC Act;
    3. (c)
      the offending occurred in the context of a volatile relationship breakdown and circumstances noted in the sentencing remarks of Judge Coker;
    4. (d)
      the sentencing remarks of Judge Coker noted various factors relevant to his determination of penalty and exercise of discretion not to record a conviction, which included: the effects on the applicant; the applicant had provided a letter of apology which “clearly shows your acceptance and responsibility for the events that occurred...”; the applicant had undertaken an anger management program and relationship counselling, and the applicant had significant potential;
    5. (e)
      the applicant has no criminal history apart from the identified offending;
    6. (f)
      the applicant has not offended since the identified offending;
    7. (g)
      the applicant has undertaken an anger management program and relationship counselling;
    8. (h)
      the rehabilitative steps taken by the applicant, her co-operation with justice and letter of apology prepared prior to her sentencing, indicate her insight in relation to the offending;
    9. (i)
      there is no risk of the applicant engaging in further offending conduct or similar behaviour because the circumstances of her offending were the result of a marriage breakdown which has now resolved and the applicant now has no ongoing interaction with her ex-husband;
    10. (j)
      there is no evidence that the applicant presents a risk to children because: no children were present at the time of the offending; the circumstances of the offending has no relevance to any employment that the applicant undertakes with children, and there have been no previous concerns regarding the applicant’s behaviour towards children;
    11. (k)
      the evidence of the psychologist is persuasive and should be accepted;
    12. (l)
      the evidence of the psychologist demonstrates that: the applicant has insight into her offending; there are no significant risk factors; there are significant protective factors and preventative strategies, and the applicant does not present a risk to children;
    13. (m)
      the evidence of the applicant and AB should be accepted;
    14. (n)
      the applicant’s evidence demonstrates that: she has a high degree of insight into her offending as a result of her reflection on the incident and through her engagement with counselling and anger management courses; she has matured and adopted a number of positive life changes; she has removed herself from triggers by relocating and ceasing all communication with her ex-husband; she has established suitable protective factors to mitigate risk of engaging in similar behaviour in the future;
    15. (o)
      the applicant’s case is not an ‘exceptional case’ in which it would not be in the best interests of children for a working with children clearance to issue;
    16. (p)
      in the circumstances, it is appropriate that the Tribunal exercises its power pursuant to s 66(2)(a) and s 662(2)(d) of the QCAT Act to prohibit publication of these proceedings.

Consideration of the law and evidence relevant to this case

  1. [133]
    The Tribunal is required to determine whether an exceptional case now exists in respect of the applicant.
  2. [134]
    As required, the Tribunal has considered the matters set out in s 226(2) of the WWC Act relevant to this case (which are detailed above) in deciding whether an ‘exceptional case’ exists.
  3. [135]
    The Tribunal has also considered the submissions on behalf of the applicant and respondent respectively concerning relevant risk factors and protective factors.
  4. [136]
    The Tribunal accepts that the applicant was not charged with nor convicted of a serious offence nor a disqualifying offence.[45]
  5. [137]
    However, the Tribunal accepts that the applicant has a criminal history as follows:
    1. (a)
      On 19 April 2021, the applicant was convicted of:
      1. assault occasioning bodily harm, in company (on 7 March 2019), in respect of which the applicant was fined $500;
      2. assault occasioning bodily harm – domestic violence offence (on 7 March 2019), in respect of which the applicant was fined $250;
      3. common assault – domestic violence offence (on 7 March 2019), in respect of which the applicant was fined $250; and
    2. (b)
      On 19 April 2021, a nolle prosequi was entered in relation to the following additional charges arising out of the same incident, which were discharged:
      1. assaults occasioning bodily harm whilst armed/in company – domestic violence offence (on 7 March 2019);
      2. common assault – domestic violence offence (on 7 March 2019); and
      3. assaults occasioning bodily harm – domestic violence offence (on 7 March 2019).
  6. [138]
    The convictions are each a ‘conviction’ for the purposes of the WWC Act notwithstanding that no conviction was recorded.[46]
  7. [139]
    The convictions were made upon the applicant entering a plea of guilty on the basis of an agreed statement of facts.
  8. [140]
    The Tribunal also accepts that the applicant was also respondent to a Temporary Protection Order made on 11 March 2019 and a Protection Order made on 2 June 2019. The Protection Order expired on 2 June 2021. Those orders were made in the circumstances of the applicant’s offending on 7 March 2019.
  9. [141]
    The Tribunal notes that in her evidence before the Tribunal, the applicant agreed that she had pleaded guilty to charges on the basis of a statement of facts but said that she does not now agree with the statement of facts, in particular the allegation that the applicant assaulted her ex-husband’s sister. The applicant said that at the time of her guilty plea, she did not properly understand that she engaged in assault.
  10. [142]
    The Tribunal cannot go beyond convictions and must accept them as they are.[47] The Tribunal cannot now, in relation to an offence, accept a different version of events in relation to the facts concerning the commission of the offence.[48] The applicant’s offending was of a violent and aggressive nature and involved physical assault.
  11. [143]
    The applicant submits that there is no evidence that the applicant presents a risk to children because: no children were present at the time of the offending; the circumstances of the offending has no relevance to any employment that the applicant undertakes with children, and there have been no previous concerns regarding the applicant’s behaviour towards children. The Tribunal does not accept those submissions.
  12. [144]
    The Tribunal accepts that no children were present at the time of the offending.
  13. [145]
    However, the applicant’s offending behaviour reflects adversely on her ability to judge appropriate behaviour, deal with conflict in a constructive manner, exercise self-control and present as a positive role model for children. For reasons that are detailed above, the applicant’s offending behaviour is a significant risk factor which gives rise to very serious concerns about her ability to provide a protective environment for children and to ensure their safety and wellbeing.
  14. [146]
    The Tribunal notes that the offending occurred relatively recently on 7 March 2019. The Tribunal accepts that the applicant has no criminal history apart from that identified, and has not engaged in further offending since 7 March 2019. There is some concern that insufficient time has elapsed to be satisfied that the applicant will not engage in further similar behaviour.
  15. [147]
    In any event however, the passage of time alone is not determinative of whether or not a case is an exceptional case[49] and it is necessary to consider this risk factor and other risk factors in the context of all the relevant circumstances.
  16. [148]
    The Tribunal has considered the various matters set out in the sentencing remarks of Judge Coker, including that the offending occurred in the context of a volatile marital separation and altercation between the applicant, her brother, her ex-husband and his sister. The Tribunal accepts that the applicant provided a letter of apology, participated in two sessions of family and relationship counselling between 16 September 2019 and 30 September 2019 and also successfully completed a 30 hour anger management program in about April 2021.
  17. [149]
    The Tribunal notes that Judge Coker stated to the effect that those matters “clearly shows your acceptance and responsibility for the events that occurred...”.
  18. [150]
    However, it is significant that there is now some apparent inconsistency between the comments of Judge Coker in that regard and the applicant’s evidence to this Tribunal, to the effect that the applicant does not now agree with the statement of facts which was the basis for her plea of guilty, in particular the allegation that the applicant assaulted her ex-husband’s sister. The applicant’s evidence before this Tribunal is also that at the time of her guilty plea, she did not properly understand that she engaged in assault. This raises some concern as to the extent of the applicant’s insight into her offending and the genuineness of her expressions of remorse.
  19. [151]
    In assessing the evidence, the Tribunal gives no weight to the written statements of persons who were not made available to appear and give evidence before the Tribunal because, firstly, it is not apparent that they had correct and full knowledge of the applicant’s offending and convictions and, secondly, there was no opportunity to test their evidence by cross-examination.
  20. [152]
    The applicant gave evidence that she had matured, had adopted a number of positive life changes, no longer had contact with her ex-husband and had a supportive network. The applicant expressed remorse for the offending and stated that she had developed insight into her offending including through the counselling and training that she had undertaken.
  21. [153]
    However the Tribunal notes that, in giving her evidence, the applicant appeared to be most significantly concerned about the effects of her offending behaviour on herself, rather than to demonstrate significant insight into the effects of her offending on others.
  22. [154]
    The Tribunal has some concern in relation to the evidence of the applicant. As previously noted, in her evidence before the Tribunal, the applicant agreed that she had pleaded guilty to charges on the basis of a statement of facts presented to the sentencing Court, but said that she does not now agree with the statement of facts, in particular the allegation that the applicant assaulted her ex-husband’s sister. The applicant said that at the time of her guilty plea, she did not properly understand that she engaged in assault. This is a significant departure from the evidence accepted by the sentencing Court and, in conjunction with inconsistencies highlighted by the evidence of the psychologist, gives this Tribunal cause to question the veracity of the applicant’s evidence generally in these proceedings. In any event, even if the applicant’s evidence in these proceedings is to be accepted, the extent of the applicant’s expressions of insight and remorse in relation to the offending must be considered in the context of the applicant’s evidence that she does not now agree with the evidence accepted by the sentencing Court, in particular the allegation that the applicant assaulted her ex-husband’s sister.
  23. [155]
    AB, the applicant’s friend and former co-worker, gave evidence that she had never seen the applicant lose her temper, even in stressful situations. AB said that she had no concerns regarding the applicant working with children and she would employ the applicant again if she had the opportunity to do so. AB presented as an open and sincere witness. She appeared to have at least a general knowledge of the applicant’s offending and the reasons for the issue of the negative decision. The Tribunal accepts the truthfulness of her evidence.
  24. [156]
    The psychologist identified triggers for the applicant’s “aggressive response” which related to the aggression of her ex-husband’s sister, the fight between her brother and her ex-husband, “feeling trapped”, the relationship with her ex-husband and the behavioural choices of other people. The psychologist also identified protective factors being the applicant’s support network and the applicant’s insight and remorse. On the basis of an interview with the applicant and assessments conducted over one session, the psychologist concluded that the applicant does not present a risk to children.
  25. [157]
    It is clear from the evidence of the applicant and the psychologist that, contrary to directions of this Tribunal, the psychologist was not provided with the respondent’s statement of reasons for deciding to issue the negative notice, which also detailed the applicant’s offending. It appears that the psychologist relied only on information provided by the applicant during an interview and assessments conducted over a single session. The applicant and the psychologist both stated that the applicant explained the applicant’s offending to him during the interview. However, it is clear from the evidence of the psychologist, that the psychologist misunderstood the situation. The psychologist incorrectly understood that, following a successful legal challenge, the applicant had ultimately been acquitted of criminal charges. The psychologist was unable to say whether the applicant had been convicted of, or pleaded guilty to, any offences. The psychologist had no record and was unable to recall certain information, including the exact event that triggered the applicant’s aggressive response and whether the applicant’s response was physical or verbal. Further, the psychologist noted that some assessments indicated possible under-reporting by the applicant, however the psychologist noted that the assessment results were consistent with information provided by the applicant during interview. Because of these matters, the Tribunal has some doubt about the veracity of the information provided by the applicant to the psychologist and, even more significantly, doubt about the veracity of the psychologist’s findings. For those reasons, the Tribunal is not satisfied that the psychologist’s opinion is reliable and accords it little weight.
  26. [158]
    The Tribunal notes that the position may have been different if it was satisfied that the psychologist had been provided with the written reasons for the respondent’s decision to issue a negative notice and that the psychologist’s opinion was formed on the basis of an accurate and complete understanding of the applicant’s offending and relevant circumstances.
  27. [159]
    For the sake of completeness, having regard to the evidence as a whole and the triggers and protective factors identified by the psychologist, the Tribunal is not satisfied that the resolution of the applicant’s marriage breakdown and the applicant’s cessation of contact with her ex-husband necessarily mitigates risk to children. Further the Tribunal is not satisfied of the significance and effectiveness of the applicant’s support network as a protective factor in the future. The applicant and the psychologist identified the applicant’s mother and brother as a support network and protective factor. The applicant’s mother and brother did not appear in person before the Tribunal. The Tribunal notes that they did not serve as a protective factor at the time of the offending and the applicant’s brother was her co-accused in the offending. In addition, as noted above, the Tribunal is not satisfied that the applicant has developed significant insight and remorse into her offending and the effect on others.
  28. [160]
    Having regard to the evidence as a whole and various matters set out above, the Tribunal is not satisfied, on the balance of probabilities, that the applicant now presents a low risk of reoffending and that there is not a real and appreciable risk that the applicant would harm children whilst employed or undertaking volunteer work.
  29. [161]
    Further, the Tribunal is satisfied, on the balance of probabilities, that it would not be in the best interests of children for the respondent to issue a working with children clearance to the applicant.
  30. [162]
    For all the reasons set out above:
    1. (a)
      The Tribunal is satisfied that the applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act; and
    2. (b)
      It is appropriate that the Tribunal orders that the decision of the respondent that the applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act is confirmed.

Non-publication

  1. [163]
    The Tribunal may, on the application of a party to the proceeding or on its own initiative, make an order prohibiting the publication of certain information or evidence if such an order is necessary, relevantly, in the interests of justice.[50]
  2. [164]
    The applicant submitted that de-identification or non-publication of the reasons and orders are necessary in this case.
  3. [165]
    A child-related employment review is required to be held in private.[51] This is consistent with the sensitive nature of information often considered in such hearings and the overriding principle that the welfare and best interests of a child are paramount.[52]
  4. [166]
    In the circumstances, the Tribunal considers that it is appropriate for orders to be made that publication of the name or identifying information of the applicant, or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the QCAT Act.
  5. [167]
    Accordingly, these reasons are to be published in a de-identified format.

Relevant Human Rights

  1. [168]
    In conducting this review, the Tribunal has:
    1. (a)
      interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights;[53]
    1. (b)
      acted and made a decision in a way that is compatible with human rights; [54] and
    2. (c)
      in making a decision, given proper consideration to relevant human rights that may be affected by the decision and considered whether the decision would be compatible with human rights.[55]
  2. [169]
    Human rights which may be affected by this child-related employment decision made under the WWC Act relevantly include:
    1. (a)
      the human rights of the applicant to ‘privacy and reputation’,[56] ‘to take part in public life’,[57] ‘to further vocational education and training’;[58] and
    2. (b)
      the human right of every child to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’.[59]
  3. [170]
    The Tribunal is satisfied that the Tribunal’s decision will nevertheless be compatible with human rights because it is reasonable and justifiable having regard to the matters set out in s 13(2) of the HRA. In particular, the decision will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children, which is itself a human right.[60] Further, any limitation on the applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC Act, that is, the welfare and best interests of children are paramount.

Orders

  1. [171]
    Accordingly, the Tribunal makes the following orders:
  1. The decision of the Director-General, Department of Justice and Attorney-General that CA’s case is exceptional within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Publication of the name or identifying information of CA or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

Footnotes

[1]  WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[2]  WWC Act, sch 7 (definition of ‘disqualifying offence’); s 16.

[3]  Pursuant to ss 580(1) and (2) WWC Act (the transitional provisions), the Tribunal is required to apply the WWC Act, as amended, in relation to the review.

[4]  WWC Act, sch 7 (definition of ‘disqualified person’); s 17.

[5]  WWC Act, s 354(1).

[6]  WWC Act, s 353 (definitions of ‘prescribed period’ and ‘chapter 8 reviewable decision’).

[7]  WWC Act, s 354(1).

[8]  WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’); s 354.

[9]  QCAT Act, s 19(a).

[10]  QCAT Act, s 19(c).

[11]  QCAT Act, s 20(1).

[12]  QCAT Act, s 20(2).

[13]  QCAT Act, s 21.

[14]  WWC Act, s 221(1).

[15]  WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[16]  WWC Act, s 221(2).

[17] Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257, [37].

[18] Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

[19] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].

[20] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]; see also Re FAA [2006] QCST 15, [22].

[21]  WWC Act, s 5(b).

[22] Commission for Children and Young People Bill 2000, Explanatory Notes, [10].

[23] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[24]  [2008] WASCA 171, [109].

[25] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [28].

[26] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing with authority the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

[27] Commissioner for Young People v Storrs [2011] QCATA 28, [17].

[28]  WWC Act, sch 7 (definition of ‘child-related employment decision’); s 358.

[29]  WWC Act, s 360.

[30] SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252, [109].

[31]  HRA, s 48.

[32]  HRA, s 58(2).

[33]  HRA, s 58(1).

[34]  HRA, s 58(5).

[35]  HRA, ss 8, 13.

[36]  WWC Act, s 226(2)(a)(i).

[37]  WWC Act, sch 7 (definition of ‘conviction’).

[38]  WWC Act, S 226(2)(a)(ii).

[39]  WWCA Act, Sch 2.

[40]  WWCA Act, Sch 4.

[41]  WWC Act, S 226(2)(a)(iii).

[42]  WWC Act, S 226(2)(a)(iv).

[43] CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [67].

[44]  WWC Act, S 226(2)(a)(v).

[45]  WWC Act, sch 7 (definition of ‘serious offence’); s 15. WWC Act, sch 7 (definition of ‘disqualifying offence’); s 16. 

[46]  WWC Act, sch 7 (definition of ‘conviction’).

[47] Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257, [37].

[48] Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

[49] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[50]  QCAT Act, ss 66(1), (2) and (3).

[51]  WWC Act, s 361(1).

[52]  WWC Act, s 360.

[53]  HRA, s 48.

[54]  HRA, s 58(1).

[55]  HRA, s 58(5).

[56]  HRA, s 25.

[57]  HRA, s 23.

[58]  HRA, s 36(2).

[59]  HRA, s 26(2).

[60]  HRA, s 13(2)(b).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2022] QCAT 305

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    09 Aug 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

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
2 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
4 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Cite 4 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
2 citations
Jump To
Cite 1 - [2011] QCATA 28
Cite 2 - [2011] QCATA 28
CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
1 citation
Jump To
Cite 1 - [2015] QCAT 219
Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293
3 citations
Jump To
Cite 1 - [2010] QCAT 293
Cite 2 - [2010] QCAT 293
Cite 3 - [2010] QCAT 293
FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210
3 citations
Jump To
Cite 1 - [2016] QCAT 210
Cite 2 - [2016] QCAT 210
Cite 3 - [2016] QCAT 210
Immigration and Ethnic Affairs v Gungor (1982) FCA 99
3 citations
Jump To
Cite 1 - (1982) FCA 99
Cite 2 - (1982) FCA 99
Cite 3 - (1982) FCA 99
Jackson v Commission for Children and Young People and Child Guardian [2014] QCAT 186
3 citations
Jump To
Cite 1 - [2014] QCAT 186
Cite 2 - [2014] QCAT 186
Cite 3 - [2014] QCAT 186
Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25
3 citations
Jump To
Cite 1 - [2015] QCAT 25
Cite 2 - [2015] QCAT 25
Cite 3 - [2015] QCAT 25
Re FAA [2006] QCST 15
2 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252
1 citation
Jump To
Cite 1 - [2020] QCAT 252
Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257
3 citations
Jump To
Cite 1 - [2015] QCAT 257
Cite 2 - [2015] QCAT 257
Cite 3 - [2015] QCAT 257

Cases Citing

Case NameFull CitationFrequency
GV v Director General, Department of Justice and Attorney General [2023] QCAT 302 citations
KLT v Director-General, Department of Justice and Attorney-General [2024] QCAT 2711 citation
LJD v Director-General, Department of Justice and Attorney-General [2023] QCAT 4981 citation
MDW v Queensland Police Service – Weapons Licensing [2024] QCAT 2752 citations
MJD v Director General, Department of Justice and Attorney General [2023] QCAT 2102 citations
MSF v Director-General, Department of Justice and Attorney-General [2024] QCAT 3433 citations
1

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