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NPK v Director General, Department of Justice and Attorney-General[2022] QCAT 395

NPK v Director General, Department of Justice and Attorney-General[2022] QCAT 395

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

NPK v Director General, Department of Justice and Attorney-General [2022] QCAT 395

PARTIES:

npk

(applicant)

v

dIRECTOR-GENERAL, Department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML121-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

16 November 2022

HEARING DATE:

29 March 2022

HEARD AT:

Cairns

DECISION OF:

Member Pearce

ORDERS:

The decision of the Director General, Department of Justice and Attorney General that the applicants case is “exception” within the meaning of s221(2) of the Working With Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – Applicant charged but not prosecuted for a non-serious offence – whether the Applicant’s case is an ‘exceptional case’

Working With Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Education (General Provisions) Act (Qld) 2000

Human Rights Act 2019 (Qld)

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

RPG v Public Safety Business Agency [2016] QCAT 331.

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

APPEARANCES & REPRESENTATION:

 

Applicant:

NPK represented by E. Burke, Holding Redlich

Respondent:

J. Capper, Advocacy Officer, Blue Card Services, representing the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

BACKGROUND

  1. [1]
    The applicant has applied for a review of a reviewable decision under the Working With Children (Risk Management and Screening Act 2000 (‘The WWC Act”)
  2. [2]
    The applicant applied for a working with children clearance and exemption card (“blue card”) under the WWC Act.
  3. [3]
    The applicant holds a full teachers registration and is employed as the Head of Campus at Malu Kiyay Ngurpay Lag, Tagai State College which is located on Boigu Island.
  4. [4]
    The applicant is from Boigu Island. He was advised to apply for a blue card due to the presence of a kindergarten on the school Campus.
  5. [5]
    On 3 March 2021, after assessing the Applicant’s eligibility, the respondent issued a negative notice under the WWC Act.
  6. [6]
    On 6 April 2021, the applicant filed an application to the Queensland Civil and Administrative Tribunal (“The Tribunal”) to review the respondent’s decision that the applicant’s case was an “exceptional case” in which it would not be in the best interest of children for the Applicant to be issued with a blue card.
  7. [7]
    On 29 March 2022 an oral hearing was conducted before the Tribunal.
  8. [8]
    Following the hearing the parties were given directions to file final submissions within 7 days.

Legal Framework

  1. [9]
    The principle under which the WWC Act must be administered is that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[1] A child-related employment decision must be reviewed under the principle that the welfare and best interests of the child are paramount.[2]
  2. [10]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children in Queensland through a scheme, “…. to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so”.[3]
  3. [11]
    As noted by Carmody J in RPG v Public Safety Business Agency[4] the blue card regime seeks to ensure child safety by allowing only eligible adults to either work with, or care for, other people’s children, when undertaking what the Working with Children Act terms as ‘regulated employment’. 
  4. [12]
    The blue card regime is administered by Blue Card Services. The major function of Blue Card Services is to engage in a screening process to determine who will be issued with a blue card, by means of a system of ‘positive’ and ‘negative’ notices.[5] Those who obtain a positive notice may obtain a blue card as of right and may work with children. Those given a negative notice may not apply for, or start, or continue in, regulated employment.[6]
  5. [13]
    Of particular relevance is section 221, which provides:
  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-

(i) investigative information;

(ii) disciplinary information;

(iii) a charge for an offence other than a disqualifying offence;

(iv) 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. (2)
    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 for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.
  1. [14]
    In the particular context of ascertaining whether there is an exceptional case requiring the issue of a negative notice, the WWC mandates regard for the matters set out in s 226(2). Section 226(2) is not to be treated as an exhaustive list and does not expressly or impliedly confine the Tribunal to considering only those matters specified therein. Rather, the matters set out in s 226(2) are ‘merely certain particular matters which the [Tribunal] is obliged to consider in deciding the application’.[7]
  2. [15]
    Section 226 provides:
  1. (1)
    This section applies if the chief executive-
  1. (a)
    is deciding whether or not there is an exceptional case for the person; and (b) is aware that the person has been convicted of, or charged with, an offence.
  1. (2)
    The chief executive must have regard to the following–
  1. (a)
    In relation to the commission, or alleged commission, of an offence by the person –
  1. (i)
    whether it is a conviction or a charge; and
  2. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  3. (iii)
    when the offence was committed or is alleged to have been committed; and
  4. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  5. (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. (b)
    Any information about the person given to the chief executive under section 318 or 319;
  2. (c)
    Any report about the person’s mental health given to the chief executive under section 335;
  3. (d)
    Any information about the person given to the chief executive under section 337 or 338;
  4. (e)
    Anything else relating to the commission, or alleged commission, or the offence that the chief executive reasonably considers to be relevant to the assessment of the person.

QCAT Review

  1. [16]
    The purpose of the review before QCAT is for the Tribunal to produce what the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) terms the ‘correct and preferable’ decision, after a fresh hearing, on the merits.[8] In exercising its review jurisdiction the Tribunal must decide the review in accordance with the QCAT Act and the WWC Act, and exercises all of the functions of the original decision-maker for the decision now under review.[9] Because of s 19(a) of the QCAT Act, the objects[10] of the WWC Act must still be upheld. That is a matter that is also reaffirmed by s 360 of the WWC Act, which provides that a child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child (or children) remains paramount. 
  2. [17]
    The decision under review is whether the applicant’s case is an “exceptional case”.[11] Pursuant to section 221(2) of the WWC Act, the decision-maker must issue a blue card unless satisfied that an exceptional case exists in which it would not be in the best interests of children to do so.[12]

Material Filed in the Proceedings

Applicant’s material;

  1. [18]
    In addition to the application to review the decisions the Applicant filed the following document
    1. (a)
      Affidavits, dated 27 March 2018 and 22 November 2021;
    2. (b)
      Statement, undated
    3. (c)
      A reference, Ned David, dated 11 July 2017;
    4. (d)
      A reference, Steve Foster, dated 3 June 2017;
    5. (e)
      An affidavit from Stephanie Veronica Savage, dated 10 November 2021;
    6. (f)
      An affidavit from Lui Ned David, dated 10 November 2021;
    7. (g)
      An affidavit from Sallyanne Hart, dated 17 November 2021;
    8. (h)
      Proof of evidence, Don Anderson, undated;
    9. (i)
      Correspondence from the Queensland College of teachers dated 17 July 2018;
    10. (j)
      Correspondence from the Department of Education, dated 17 April 2019;
    11. (k)
      A transcript of proceedings before Magistrate Spencer in the Thursday Island Magistrates Court, dated 28 March 2018;
    12. (l)
      Student protection training records, undated;
    13. (m)
      A certificate of participation for Student Protection training, dated 17 November 2021; and
    14. (n)
      A memorandum of advice on prospects, dated 23 October 2017.

Respondent’s material; filed

  1. [19]
    The respondent filed the following documents:
  1. (a)
    A bundle of documents marked BCS – 1 to BCS – 48
  2. (b)
    A bundle of documents marked NTP-1 to NTP-442

Summary of relevant facts:

  1. [20]
    On 6 October 2016, Police from Thursday Island Child Protection Investigation Unit (CPIU) commenced an investigation into the indecent treatment of children at Malu Liwai State School, Boigu Island.
  2. [21]
    As a result of the initial investigation a male teacher was arrested and charged with the offence of indecent treatment of children.
  3. [22]
    On 18 October 2016, police from Thursday Island CPIU returned to Boigu Island to continue the investigation.
  4. [23]
    On that date Police spoke with the head of campus for Malu Kiwai State School, the applicant. The Police asked the applicant if since police first attended the island on 6 and 7 October, had any person approached him with information in relation to any type of child harm within the school. The applicant stated no to police.
  5. [24]
    Police carried out a number of interviews with young female students. Information received from one of those interviews was that on 7 October 2016 a female student verbally told two teachers at the school she had been indecently treated by her teacher.
  6. [25]
    These teachers reported the information to the applicant on 10 October. Both teachers provided police with written statements stating the same. One teacher stated, “I told [NPK] in a direct but sensitively worded way”.
  7. [26]
    Both teachers stated there was no way the applicant would have been confused about who they were talking about or what the allegation was.
  8. [27]
    Once the teachers had passed the information to the applicant they believed they had reported the harm to head of campus as they were required to so. At no time during that conversation did the applicant ask them to complete a written report.
  9. [28]
    On the afternoon of 19 October 2016, police attended the applicant’s office and spoke to him in relation to the investigation. Police questioned the applicant about his knowledge of the allegations that had been reported by the teachers.
  10. [29]
    The applicant initially denied knowledge, however later stated he vaguely remembered a conversation about the allegations. The applicant stated to police that he had not reported those allegations that he was informed of on 20 October 2016.
  11. [30]
    On 20 October 2016 the police received 2 reports of suspected harm or risk of harm notifications from head of campus Malu Kiwai Sate School, the applicant.
  12. [31]
    These reports listed the suspected harm to the female student. One report stated that on 7 October 2016 the female student reported to a teacher the indecent treatment allegation.
  13. [32]
    On another report it stated that on 7 October 2016 the female student reported the indecent treatment allegation to another teacher.
  14. [33]
    On 19 June 2017 the police travelled to Boigu and arrested the applicant. He was visibly shaken and in obvious shock. He was not interviewed at this time. He was charged under Education (General Provisions) Act 2006.
  15. [34]
    On each charge the prosecution discontinued proceedings against the applicant after offering no evidence and the applicant was discharged accordingly.
  16. [35]
    The Queensland College of Teachers suspended the Applicants teachers registration in relation to failing to report the information.
  17. [36]
    On 18 July 2018 the Queensland college of Teachers referred the review of continuation of the suspension to the Queensland Civil and Administrative Tribunal (QCAT).
  18. [37]
    On 11 September 2017 QCAT ordered the continuation for the suspension of the applicant’s teacher registration.
  19. [38]
    On 9 October 2017 and 28 March 2018, no evidence was offered by the prosecution with respect to the charges.
  20. [39]
    The applicant was removed from the Register of Teachers on 3 April 2018 for non-payment of his annual fee. The suspension of the applicant’s registration ended with the cessation of his registration.
  21. [40]
    The Queensland College of Teachers determined not to take disciplinary action against the applicant due to the court outcome.
  22. [41]
    On 5 July 2018, the applicant re-applied for teacher registration. He was found suitable to teach and was granted full registration on 6 November 2018.
  23. [42]
    The applicant had no other practice or conduct matters during his period of registration.

Section 226(2) of the WWC Act

  1. [43]
    The decision under review is whether the applicant’s case is an “exceptional case” pursuant to section 221(2) of the WWC Act, the decision-maker must issue a blue card unless satisfied that an exceptional case exists in which it would not be in the best interest of children to do so.
  2. [44]
    The Tribunal must have regard to considerations prescribed by section 226(2) of the WWC Act in determining whether an exceptional case exists.
  3. [45]
    The applicant was charged, but not convicted of, an offence that carries a maximum penalty of 20 Penalty units (or $2,523 in 2018).
  4. [46]
    The applicant was prepared to defend the charge but through no fault of his own was not given the opportunity to do so. No evidence presented against him could be tested.
  5. [47]
    The charge against the applicant was not a serious or disqualifying offence under the WWC Act. The applicant has had his teacher’s registration restored after assessment by the Queensland College of Teachers.
  6. [48]
    Witnesses called by the applicant were unanimous in their support of the applicant, the value of the applicant to his community and the enormous impact this situation has had on the applicant. The applicant being able to continue working with children is undoubtedly in the best interest of children.

Eligibility for a blue card

  1. [49]
    The Respondent raised concerns that to issue a blue card would mean the applicant is permitted to work in a range of child-related employment. The Tribunal has not ignored the irony that the applicant was not required to have the blue card issued in the first instance and had he not applied this situation would never have arisen. It is accepted, from evidence provided at the hearing, that the applicant would be ever vigilant in future should a similar situation arise.

Relevant Human Rights

  1. [50]
    The Respondent submitted that a decision that the applicant’s case is an exceptional case is compatible with Human Rights. The reasoning is that despite any limitation the decision places on the applicant’s human rights, the decision will be justified by the factors outlined under section 13 of the Human Rights Act 2019 (Qld) (HRA). And furthermore, that the limitation on the applicant’s human right is consistent with the object and paramount principle of the WWC Act that is, the welfare and best interest of children a paramount.
  2. [51]
    The applicant argued that the decision has impacted the human rights of the applicant’s students as protected by section 28 of the HRA[13], which deals with the cultural rights of Aboriginal and Torres Strait Islander peoples.
  3. [52]
    Section 28(2) states that Aboriginal peoples and Torres strait Islander peoples must not be denied the right, with other members of their community
  1. (a)
    To enjoy, maintain, control, protect and develop their identity and cultural heritage including their traditional knowledge, distinctive spiritual practices, observances, beliefs, teachings; and
  2. (b)
    To enjoy, maintain, control, protect, develop and use their language, including traditional cultural expressions; and
  3. (c)
    To enjoy, maintain, control, protect and develop their kinship ties.
  1. [53]
    The Tribunal accepts that the effect of the negative notice greatly impacted the human right of not only the Applicant but his students on the remote island of Boigu in the Torres Strait.
  2. [54]
    The Tribunal finds that based on the evidence provided it is reasonable to consider that the applicant does not represent a risk or harm to children and therefore this case is not an exceptional case.

The Order:

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 Tribunal’s decision that there is no exceptional case.             

Footnotes

[1]WWC Act, s 6.

[2]WWC Act, s 360.

[3]WWC Act, s 5(b); WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17].

[4][2016] QCAT 331. [8]-[19].

[5]Working with Children Act, s 220.

[6]Working with Children Act, s 257.

[7]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, (Philippides J).

[8]QCAT Act, s 20.

[9]QCAT Act, s 19.

[10]Working with Children Act, s 5.

[11]Working with Children Act, s 353.

[12]Working with Children Act, s 221(2).

[13]Human Rights Act 2019 (Qld), section 28.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2022] QCAT 395

  • Court:

    QCAT

  • Judge(s):

    Member Pearce

  • Date:

    16 Nov 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
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
RPG v Public Safety Business Agency [2016] QCAT 331
2 citations
Jump To
Cite 1 - [2016] QCAT 331
Cite 2 - [2016] QCAT 331
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
2 citations
Jump To
Cite 1 - [2015] QCATA 190
Cite 2 - [2015] QCATA 190

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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