Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2022
  4. AB v Director General, Department of Justice and Attorney-General - [2022] QCAT 413

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

AB v Director General, Department of Justice and Attorney-General[2022] QCAT 413

AB v Director General, Department of Justice and Attorney-General[2022] QCAT 413

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

AB v Director General, Department of Justice and Attorney-General [2022] QCAT 413

PARTIES:

AB

(applicant)

v

Director General, department Of JUSTIce and attorney general

(respondent)

APPLICATION NO/S:

CML283-21

MATTER TYPE:

Childrens matters

DELIVERED ON:

20 December 2022

HEARING DATE:

10 November 2022

HEARD AT:

Southport

DECISION OF:

Member McDonald

ORDERS

  1. The decision of the Director General of Department of Justice and Attorney General that the applicant’s case is not exceptional within the meaning of s 225 of the Working with Children (Risk Management Act 2000 (Qld) is set aside and substituted with the decision that there is an exceptional case.
  2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of any information that could lead to the identification of the applicant and accordingly these reasons have been deidentified.

CATCHWORDS:

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

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where refusal to cancel a negative notice – application for review – where applicant has conviction for a serious offences – whether an ‘exceptional case’ – application of mandatory considerations.

Human Rights Act 2019 (Qld), s 8, s 13, s 58, s 21, s 23, s 36(2), s 108

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 225, s 226, s 228, s 360, Schedule 2

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492

Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27

Re TAA [2006] QCST 11.

APPEARANCES & REPRESENTATION:

Applicant:

AB

Respondent:

MM representative of Blue Card Services.

REASONS FOR DECISION

  1. [1]
    AB seeks review of the decision on the Chief Executive of Blue card services to issue refuse to cancel a negative notice for a blue card made on 23 July 2021.[1] He has made previous unsuccessful applications to Blue card services for cancellation of his negative notice.[2]
  2. [2]
    AB, now aged 35 years, committed multiple serious offences, between 2005 and 2014. From the age of 18, when he commenced offending, to the age of 26, he developed an extensive criminal history which included serious offences, but not disqualifying offences, as well as many other convictions and charges which shall be outlined in due course.
  3. [3]
    AB has asked the Tribunal to consider his evidence that he says indicates that his life of offending is well behind him. He argues that he has had a full transformation from the life of crime and violence of his youth and is leading a productive life employed in the rehabilitation and recovery of people with addictions, drawing from his own path of recovery. He argues that because of this he is not a risk to children and is an exceptional case in which it would not harm the best interests of children to issue a blue card.
  4. [4]
    The Respondent department argues that his is not an exceptional case[3] and that the decision should be confirmed.
  5. [5]
    The Tribunal determines this matter in its review jurisdiction considering the terms of the WWC Act relating to suitability for child related employment. The review purpose is to produce the correct and preferable decision.[4] This decision must be guided by principles that govern decision making under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (“the WWC Act”):
  1. (a)
    the welfare and best interests of a child are paramount.[5]

This is the consideration to which all others yield.[6]

  1. (b)
    every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[7]
  1. [6]
    AB relied on the following documents in support of his application:
  1. (a)
    Application filed 24 August 2021
  2. (b)
    References of CC, LL, KT, TD,
  3. (c)
    Statement of AB filed 17 May 2022
  4. (d)
    Oral testimony of witnesses CC, LL, KT, TD.
  1. [7]
    The Respondent provided the following documents to assist the Tribunal in reaching the correct and preferable decision:
    1. (a)
      Reasons for the decision to issue a negative notice dated 8 May 2007
    2. (b)
      Reasons for refusing to cancel a negative notice dated 20 June 2016, Reasons for refusing to cancel a negative notice dated 23 July 2021
    3. (c)
      Application to cancel negative notice
    4. (d)
      Criminal history
    5. (e)
      Submissions enclosing references
    6. (f)
      Queensland Police Briefs for offences in 2005,[8] 2012,[9] 2014,[10] 2009,[11] 2012 (further 8 offences)[12]
    7. (g)
      Queensland Public Prosecutions Correspondence dated[13]
    8. (h)
      Material produced by Department of Transport and Main Roads[14]
    9. (i)
      Material produced by Queensland Police[15]
    10. (j)
      Material Produced Queensland Corrective Services[16]
    11. (k)
      Respondent Submissions filed 17 November 2022
    12. (l)
      Sentencing remarks from 8 December 2006,[17] 20 December 2013,[18] and 19 April 2014,[19] 25 May 2009.[20]
  2. [8]
    The WWC Act requires that a negative notice must issue where a person has been convicted of a serious offence unless satisfied an exceptional case exists in which it would not harm the best interests of children for the applicant to be issued with a positive notice for a blue card.[21]
  3. [9]
    Whether the general rule that a negative notice should issue where an applicant has committed a serious offence, is displaced, will depend on whether an exceptional case exists. An exceptional case is not defined in the WWC, and case law indicates it is a question of fact and degree, having regard to the interest of the protection of children[22] turns on the individual circumstances of each case.[23] The central issue for the Tribunal to determine is whether AB’s case is an exceptional case such that the general rule should be displaced.
  4. [10]
    In determining whether an exceptional case exists the Tribunal must be guided by the paramount principle of the welfare and best interest of children. It must have regard to the non-exhaustive mandatory considerations stated at s 226(2) WWC Act. The Tribunal is not limited by these considerations and may take into account all relevant considerations.[24]
  5. [11]
    The Tribunal is acting as a public entity in reviewing the decision of Blue Cards Services for child related employment screening. It carries obligations to ensure it makes a decision in a way that is compatible with human rights,[25] to give consideration to any human rights affected by the decision, to not limit human rights that may be affected by the decision[26], or limits human rights only where it is reasonable and demonstrably justifiable[27]. A decision will be compatible with human rights if it does not limit human rights or limits a human right only to the extent that it is reasonable and demonstrably justified.[28] Human Rights are ascribed to an individual.[29]
  6. [12]
    An exceptional case is not simply living as a law-abiding citizen functioning at a level expected of a person at a level expected at their stage in life, which is considered to be in the ordinary course of life.[30]
  7. [13]
    The existence of remorse and insight is considered an important in considering the risks of an applicant’s past.[31] Insight is perceived as a protective factor, and relevant to likelihood of re-offending.[32]

The Respondents Evidence:

Mandatory Considerations at s 226(2) of the WWC Act

Whether the offence is a conviction or a charge

  1. [14]
    AB has convictions for serious offences occurring in 2005 at age 18:
    1. (a)
      Two convictions for Robbery with actual violence whist pretending to be armed in company; robbery with actual violence while pretending to be armed;  unlawfully entering a vehicle for committing an offence, and enter premises to commit indictable offence arising from a spree of offences in December 2005.
  1. (b)
    He has convictions for serious offences committed in 2013: burglary causing grievous bodily harm, and one for and unlawfully supplying a weapon and authority required to possess explosives. He has also convictions for receiving tainted property; breach of bail.
  1. (c)
    He has seven convictions for unlawful possession / unlawful use of motor vehicles, as well as the following offences:
  1. (i)
    Littering contravening a direction, committing public nuisance (2005);
  2. (ii)
    fail to comply with a requirement to stop private vehicle, failure to appear with undertaking, assault or obstruct police officer (2006);
  3. (iii)
    failure comply with a requirement to stop a vehicle, obstruction of a police officer (2009),
  4. (iv)
    failure to appear in accordance with undertaking, breach of bail (2012).
  1. [15]
    Correspondence from the Department of Prosecution dated 3 February 2022 confirms that indictment for a number of charges were discontinued and replaced by those for which he was ultimately convicted, which in the Crowns view “better reflected the criminality of the offences”.[33] They have not therefore been taken into account in these matters as they were not considered to represent the offences for which he was prosecuted. The Appeal Tribunal’s decision in Director General Department of Justice and Attorney General v CMH[34] is relied on in not considering dismissed, non disqualifying charges.

The circumstances giving rise to the offences

  1. [16]
    The offences referred highlighted by the by the Respondent[35] were detailed in the police briefs to be summarised as follows:[36]
  2. [17]
    On 7 December 2005, the applicant entered a Subway store in the late hours of the evening, in company, demanded money and pointed a replica firearm at the attendant. He demanded the attendant’s keys and entered the victims’ car but was unable to start it.  The following day, he entered a 7-11 convenience store with a handgun in company, with the purpose of robbing, but no-one was there, and they stole junk food and sunglasses. A week later he entered a store demanded money be handed over as well as the victim’s mobile phone. Later that day, with the replica gun, held up another store attendant demanding money.  The offences were committed late at night with adults that were alone.
  3. [18]
    In 2012 further serious offences were committed which demonstrated a concerning escalation of violence. Convictions are recorded for the following serious offences:
    1. (a)
      Entering a dwelling with intent by break at night whilst armed in company; Grievous bodily harm and unlawfully supplying a weapon and authority required to possess explosives.
  4. [19]
    The police brief indicates that AB went to the complainant’s house with two co-offender friends one of which was armed with a sawn off .22 rifle. While AB did not take the gun, he was aware that it was being taken and the purpose for the visit had been an act of revenge.  One of the co-offenders fired the rifle through the door, with a fragment of the bullet causing injury to the complainant.
  5. [20]
    AB admits that he was heavily using drugs through this period, and he claims that his habit had increased over time up until he entered rehabilitation in 2014.
  6. [21]
    These offences committed through this period of AB’s life were violent and raise questions about whether the applicant is an appropriate person to work with children, where children require adult role model that who do not engage in violent or antisocial behaviours.  They also demonstrate a disregard for the law as well as the rights and interests of others.
  7. [22]
    The Respondent argues that this lengthy and significant criminal history indicates that AB has questionable ability to judge appropriate behaviours and present as a positive role model.  At this time in his life, this would seem to have been the case.

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

  1. [23]
    AB has a criminal history which includes convictions for offences classified as serious offences, but not disqualifying offences under Schedule 4 and 5 of the WWC Act including:21
  1. (a)
    Robbery with actual violence while pretending to be armed in company; robbery with actual violence whilst pretending to be armed, armed robbery whilst pretending to be armed.  Enter a dwelling with intent by break at night whilst in company and enter dwelling with intent whilst armed in company
  1. [24]
    He has also been convicted of a number of other offences which are not classified as serious, that are relevant to be considered in determining AB’s suitability to work with children. These offences have been committed in the period between 2005 and 2013, between the ages of 18 and 26. Viewed as a whole, the criminal history reflects a lawless life at that time, and a person who drew upon intimidating and violent behaviours, with little regard for the impact of his behaviour on others.

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

  1. [25]
    The offending occurred in a discrete period of AB’s life prior to what he describes as his transformative recovery post. The offending occurred between 2005 and 2014, when AB was between aged 18 and 26. In the eight years that have passed, there have been no offences. AB’s corrective order terminated in 2018.

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

  1. [26]
    AB’s criminal history as a whole are intimidating and violent offences, and offences which show a disregard for authority. These actions speak of a person who uses  antisocial behaviour to his meet his own objectives without regard for the impact on other. The behaviour between 2005 and 2014 reflects who a person who is not a positive role model for children. 

For a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence ….and the court’s reasons for its decision;

  1. [27]
    In 2006, the court convicted AB to multiple terms of imprisonment with convictions being recorded. He was convicted to 4 years and six months imprisonment for robbery suspended for 54 months after serving 10 months. For attempted arms robbery while pretending to be armed, AB was sentenced to 10 months imprisonment and two years probation. For unlawful entry to a vehicle for committing an indictable offence at night he was sentenced to 10 months imprisonment and two years probation, served concurrently.  
  2. [28]
    Kingham J in sentencing commented[37] on the vulnerability of the complainants who were attacked at night, while alone in their workplaces. The willingness and culpability of the parties was noted. Kingham J expressly disregarded that no actual violence was involved,
  3. [29]
    Kingham J noted that in determining the penalty she sought to impose a penalty that would pose a significant deterrent to AB personally and promoted and hindered his rehabilitation. She commented AB had “better prospects ahead of you if you can put this behaviour behind you.”[38]  His co-operation, remorse and family support mitigated the sentence.
  4. [30]
    Sentencing remarks for 2009 conviction for his traffic history indicated no conviction was recorded and reflect the Magistrate’s understanding that he did not have a criminal record. Limited comment on the rationale was provided in the sentencing remarks as to the rationale.
  5. [31]
    The 2012 offences for entering and dwelling with intent to break at night whilst armed and grievous bodily harm, unlawful supply of weapons, AB was sentenced to 3 years imprisonment suspended for 5 years after serving 472 days in prison, suspended immediately due to time served. A conviction was recorded. For unlawful use of a motor vehicle with intent to deprive, AB was sentenced to six months. For unlawful possession of a motor vehicle, AB was sentenced to 6 months imprisonment.
  6. [32]
    The sentencing remarks Dalton J[39] indicated that the period of suspension was the maximum that could be imposed. All sentences were to be served concurrently with time spent 472 days deemed time already served. As a result AB was released from custody. Dalton J took into account AB’s youth (of 25 years) and strong family support recognised “good factors” in favour of AB’s rehabilitation, were factors which mitigated the sentence. She noted that long period of suspension and that the sentence was intended to provide an incentive to stay out of trouble.  Dalton J commented that AB’s s father resigning his job to look after him and help him re-establish his life.
  7. [33]
    When AB was before Dalton J the following year for breach of probation she recalled his case, and in deciding to admonish and discharge him due to evidence before her that AB was making a positive effort at rehabilitation.
  8. [34]
    Factors stated at sections 226(2) (b)-(e) do not apply in these circumstances. 

AB’s Evidence

  1. [35]
    AB agreed that the offences reflected a controlling an intimidating pattern of behaviour during that time of his life. He reflected that he had tried to create a ‘pseudo identity’ as a rebel ‘to gain respect’ in his youth. He told the Tribunal that this was to mask his deeply held unbearable feelings of ‘a broken young man’, ‘trying to pretend he was someone he was not’.  He acknowledged that in his youth he did go out with the intention of having a fight, and that his criminal actions had given him a “rush”. He noted that he was using drugs, firstly alcohol and marijuana, and later, amphetamines daily, and acknowledged his habit was described as in excess of $1000 per day.[40] He described the drug use to both cause the crime, and to finance his crimes, reflecting at the hearing that drugs will do terrible things to your judgement and nervous system.
  2. [36]
    AB acknowledged his criminal actions and spoke of the incongruence between himself now with the history that these offences demonstrated. He gave evidence that as a result of his full engagement with his rehabilitation peer recovery program, with whom he now is a paid employee with managerial responsibilities, his criminal lifestyle is in the past, and his life has been completely “rebuilt.”
  3. [37]
    He told the Tribunal that illicit substances had consumed his world at the time of these offences, but since his connections with Transformations, and the intensive therapeutic intervention around addiction through that program, (as well as external to it), he never touches drugs, and has not done so since 2014. He told the Tribunal that he knows “where drugs took me in life,” and he has put safeguards in place to keep himself stable.
  4. [38]
    Part of that is what he described as a complete “rebuild” of his life, from his peer networks, to his approach to life and relationships, his plans and goals. He stated that he has had continuous therapeutic intervention since 2014, which has allowed him to treat the root trauma that led him to his offending. He said he had rejected his faith for 13 years, and has re-embraced this, in community, and has developed a respect for himself and others. He described himself as having an aim and a purpose to his life, and describes himself as ‘giving to others’, through his addiction recovery support work that he practises daily.   He told the Tribunal that there was no way he would go back to his old life, that he had completely transformed his lifestyle, his peers and state of mind. He reflected that if, as a young person, he had met his someone like his now adult self, who had been through the criminal lifestyle and completely reformed himself, it may have been the impetus to have “pushed (him) in the right direction, and he may not have made the mistakes that (he) did”. He states that he believes that he has much to offer young people who may be proceeding down the ill-fated path of his own early adulthood.
  5. [39]
    He described his lifestyles then and now as ‘day and night’ and spoke of a life commitment to help others, modelling healthy clean living and how to fundamentally reform one’s life.
  6. [40]
    He stated that his peers are no longer criminals but are now are educated professionals. He said he maintained no social links with the peers with whom he engaged in criminality. He noted that he had attempted to engage some of them to encourage them on a path of transformation and recovery through the program that he had undertaken, but that was the only contact that he had with those of his that “former” life.
  7. [41]
    AB noted that he is now married to a paediatric nurse and they are about to commence a family. He provides a profile of a respected and contributing member of the community.
  8. [42]
    He called four witnesses in support. Each gave evidence which confirmed a profile of a fundamentally transformative change occurring in AB’s life since 2014:
  9. [43]
    CC a psychologist and psychotherapist indicated that she had been intensively working with AB over the past almost two years, initially around personal growth though a group process, and since February of this year on an effectively weekly basis as a counsellor and mentor/coach. She described ongoing intensive work with AB around emotional regulation which she saw as assisting him to manage any triggers which may have led to past negative behaviour.  She said as part of this process, which assisted to provide AB with specific skill to self-monitor and self-regulate his nervous system AB has developed tangible skills to manage the emotions that led to the initial offending. She describes these processes as more than managing these emotions but providing “healing”.
  10. [44]
    CC was aware of AB’s criminal history, although she had not read the Reasons for the Decision from Blue Card Services. She confirmed that she was aware that his history of violent offending was in the past. She described AB as having insight, being “a caring person” and having “great skills”. She remarked that AB had “enormous potential in what he had to offer”.
  11. [45]
    CC stated that she was aware that AB’s peer network had transformed and that he no longer associated with criminals, describing his current peer networks having been extended through the group work intervention which she co-ordinates, and commented on her observations that his peer network now consists of high functioning professional people who are committed to personal growth, like she considered AB was.
  12. [46]
    TD is a senior manager of the recovery service AB has been engaged with since 2014. She has qualifications in psychology and counselling. She said she has known AB for seven years, (five years as a work colleague and two years in the addiction recovery therapeutic program as a client for counselling).  She acknowledged being aware of his “full-on criminal history” prior to commencing his rehabilitation, and commented that he had experienced a “total crossover from what that life once was, now, reconnected with his parents’ heritage, and living on moral grounds.” She said that in the time that she counselled AB, she provided AB with drug & alcohol and trauma therapy from which he has derived “eclectic therapeutic tools” to understand the past trauma and make goals for the future.
  13. [47]
    She stated that there was no behaviour throughout his seven-year period with the service that caused any suspicion that he had resumed substances, and noted that random drug testing was conducted which had been overseen by her in her position as Director.  TD explained that AB had been through a peer to peer recovery process, which with therapeutic input supported AB to address the underlying issues that had led him to his former lifestyle.
  14. [48]
    TD described AB as having engaged with an intensive program of therapy with psychological techniques drawn from solution focused therapy, cognitive behavioural therapy and dialectical behaviour therapy which gave AB tools to recognise and deal with psychological issues. She described AB as having, in the early days of treatment, anger management issues, and this had been a focus of effective intervention, and had no resolved. She confirmed that AB did well in the program and had been free of substances for 8 years. She doubted that there was any significant risk of relapse for AB whom she identified had “better cognitive ability to self-regulate than others” she had observed through the program. She noted his treatment and recovery had been so successful that he has gone on to work for the organisation, working his way up to senior roles. TD observed that AB is strongly motivated to keep on track and not go back to his former lifestyle. She noted that he is well supported by family, including a wife and other family. She has observed him with her own children and has no concerns about him with children in his care.
  15. [49]
    LL is a senior manager of the recovery program. She said she had known AB for 8 years, six of which as an employer, and two in the program. She said she continued to work with him in a professional capacity, but maintained now a personal relationship.
  16. [50]
    She stated she had been very aware of AB’s violent criminal history from when he was a resident of the program, but this did not prevent the organisation offering him employment. She described AB as the “greatest success” the organisation had had in addiction recovery, with AB now being a “role model” for others. She had observed him to interact with her own children and had no concerns of him reoffending or returning to his former criminal lifestyle.
  17. [51]
    KT has a senior management role in the recovery organisation. KT stated that she had known AB for four years as a colleague and had not been involved in his therapeutic treatment in the program. She works with AB daily. She said she had knowledge of his violent criminal history and past drug use but described him now as “a completely different person,” “the extreme opposite “of what that behaviour suggested.  She said she held the view that he would never do what he has done in the past now, since his recovery treatment. She described him as having an “extremely good character”, an emotionally healthy person, and “one of the best people I have ever worked with.” KT described AB as a positive role model because people are able to see his own journey, he has been there and moved on from a self-destructive lifestyle and was a “100% success story”. She stated that the programs employment roles required abstinence from drugs and there was never any suspicion that AB had returned to his former lifestyle. She said he leads a “transparent life” respects people and people respect him.

Discussion

  1. [52]
    The evidence of both parties reflects almost dichotomous opposites as to the character of AB, a kin to what AB himself described as the “night and day” of himself before rehabilitation and after, and reflective of the “extreme opposite” of behaviours described by KT.
  2. [53]
    The evidence of crimes committed between the ages of 18 and 25 demonstrate violent crimes against the community with disregard for the law and others. Since that time,   the evidence indicates he has effectively engaged in rehabilitation, and has gone on to be contributing member of society, a highly valued employee of the rehabilitation service, and well respected person.
  3. [54]
    The evidence is undisputed that AB has transformed his life from his criminal and addictive behaviour of his youth. There is strong evidence that in the past 8 years that the has sought and sustained intensive therapy to overcome his deep-seated factors that led him to commit crimes and engage in drug use. The evidence indicates that he not only changed his lifestyle, but he has transformed his psychology, his peer networks, his self-identity and life goals, and developed skills arising from evidence-based techniques to address the psychological and emotional factors behind his offending. He has actively engaged this support within the recovery services, and external to this, and continues to work on this area of self- development. 
  4. [55]
    The record reflects that Dalton J saw a potential to make a recovery and noted that the only reason she was not returning him to jail when he breached his order was because of his prospects for recovery, and his strong family support. AB has since then, on the evidence, reformed his life of drugs and criminality and is acknowledged by his witnesses to be a role model in support of others’ recovery.  His colleagues who were his referees were well acquainted with his extensive criminal past. TD referred to as a “success story” in transformation.  All witnesses commented on the fundamental contrast between his past life of crime and current presentation. I draw from the Judgement of Dalton J[41] that this was the intention of the decision to admonish and discharge on his failure to attend probation in early 2014, him so he could return to engage in his recovery.
  5. [56]
    The presumption that arises against issue of a positive notice reflects the seriousness that Parliament views these offences when considering a person’s suitability to work with children. Although the Parliament has enshrined a presumption around serious offences, it has left open that there are cases where those with serious offences may create an exception to this rule. The temporal element enshrined at s 226(2)(iii) enables consideration that over time, conduct can change.  These offences were committed in a period of youthfulness, which has since past as AB has matured into a man with serious responsibilities.
  6. [57]
    Although recognised now as a “law-abiding citizen” by all witnesses, the evidence indicates that he is doing more than living as expected, in the ordinary course of life. He has actively dedicated his life to assisting people to recover from addiction through a peer recovery process and seeks to continue to provide a role model and sense of hope that people can recover from the trauma and addiction that led them to criminality. He has attempted to reach out to his former criminal peers to encourage them to access a program of support that led him to a recovered life. This is not living an ordinary course of life, and the appeal case of Ram[42] can be distinguished on this basis. It is a considered choice to actively help people and a daily commitment to a life without crime, to demonstrate by living as a role model that there is a way out of criminality. This means loudly and proudly demonstrating by his daily life, under the constant observation of his colleagues and those with whom he seeks to be a role model, that his life of crime is over. His changed self- identity, and the public nature of this, is a very strong protective factor in keeping his life on course.
  7. [58]
    The respondent submitted that AB had partial insight, but that he did not address the impact of his crimes on his victims and that that was relevant to his likelihood of re-offending. The record indicates that when asked to describe himself in those years of criminality, AB described himself as a “broken young man” who was trying to “fill a hole with external things” and trying to prove himself as a tough guy” but “was it a façade, smoke and mirrors and he described himself as being “a lost broken boy” in those years. 
  8. [59]
    His offending was very violent and intimidating in nature and reflected an absence of empathy for the victims of his violent offences at the time. While he did not articulate at the hearing what would likely have been in the mind the specific victims of his crimes when he committed those crimes, he has demonstrated by his reformation, an understanding of the forces that led his inner psyche to tend to criminality and learned techniques to address those forces. The oral evidence he gave, and the manner that he gave it, indicates that he approaches others with respect, in contrast to the disrespect he acknowledged that he related with people in his youth. This is a form of insight which suggests that he understands the nature of the criminal behaviour as unacceptable.  The relevance of insight for consideration here goes to its relevance in likelihood of re-offending. His insight into his own psychological forces which led to criminal behaviour is a protective factor as is the extensive psychological tool and networks he has built around him to address that behaviour and its causes. His established peers, ongoing personal and professional relationships as well as his new identity as a valued and contributing citizen living what he described as a “purposeful life” are also strong protective factors. His rebuilt identity stands in stark contrast to the exterior that he reflected that he was attempting to project through his past criminality.
  9. [60]
    I have had regard to the serious nature of the offences and extensive criminal history present up to age 25. I have had regard to the sentencing remarks of the Judges that have been provided to me. All judges recognised good prospects of rehabilitation and sentencing was made in support of these prospects given his youth at the time.  The facts indicate that AB was a troubled and violent youth but from a background of strong family values who sought to provide him with support to turn his life around. The evidence is clear that he has done this for the past 8 years.
  10. [61]
    The Tribunal cannot lawfully make a decision that is not consistent with human rights. AB’s human rights – to privacy and reputation, to take part in public life, and to further vocational education and training, contained respectively at sections 21, 23 and 36(2) of the Human Rights Act 2019 (Qld) – may be affected by a decision to refuse to cancel a negative notice. Such rights may only be limited where it is reasonable and demonstrably justified.[43] There is no basis to limit these human rights where AB has a very strong base of evidence that he no longer engages in the criminal conduct of his youth, actively serves the community by his reformed lifestyle and values and is of no current risk or future likely risk of harm to children.
  11. [62]
    Children’s rights here are protected here by the WWC Act. The object of the legislative framework and decisions around these employment screening processes in Queensland is to ensure that children are protected from harm. There is no evidence that AB will harm the best interests of children now that the evidence strongly suggests he is recovered and reformed. Although the offences demonstrated that in his youth, his antisocial behaviour made him a terrible role model, there evidence is no recent criminal behaviour, but instead a significant social contribution to preventing addiction and crime by encouraging people struggling with trauma and addiction to address it at its roots. He has taken the opportunity given to him by Dalton J, and now tries to help others to recover. He is observed to be a positive influence around children by all witnesses who gave evidence.
  12. [63]
    I find that the evidence indicates that AB, has transformed his life, has regular ongoing psychological intervention to keep him focused on “healthy clean living”, and developed a number of psychological tools and structures to keep his life on track. The evidence supports that, now aged thirty-five years, he is a well-respected citizen, with a sense of drive to help people overcome addiction and criminality, and positively contributes to society with this purpose. I am satisfied that he does not pose any harm to the welfare and best interests of children.  I am satisfied that AB is an exceptional case, where although he has been convicted of serous criminal offence, it will not harm the best interests of children if he is issued a positive notice.
  13. [64]
    The decision of the Chief Executive is set aside and substituted with a decision that there is an exceptional case.
  14. [65]
    It is not in the interests of a child for the identity of AB to be made public in circumstances where AB is about to have a child.  The Queensland Civil and Administrative Tribunal Act 2009 (Qld) allows for the making of a non-publication order where it is not in the interests of justice.[44] I am satisfied that identifying the applicant would not be in the interests of justice.
  15. [66]
    Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of any information that could lead to the identification of the applicant and accordingly these reasons have been deidentified.

Footnotes

[1]  Application filed 20 August 2021.

[2]  2007, 2016.

[3]  Respondent’s Submissions filed 17 November 2022 p 29.

[4]  s 20(2) Queensland Civil and Administrative Tribunal act 2009, (Qld).

[5]  S360 WWC Act.

[6]  QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.

[7]  S6 WWC Act.

[8]  BCS 109-123.

[9]  BCS 092-108.

[10]  BCS 145-147.

[11]  BCS 148-150.

[12]  BCS 151-168.

[13]  BCS 169-171.

[14]  NTP 001- 005.

[15]  NTP 006-020.

[16]  NTO 021-255.

[17]  BCS 121-123.

[18]  BCS 48-53.

[19]  BCS 54-55.

[20]  BCS 172-175.

[21]  WWC Act, s 225.

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

[23]  Ibid.

[24]  QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.

[25]Human Rights Act 2019 (Qld) s 58.

[26]Human Rights Act 2019 (Qld), s 58.

[27]  Ibid.

[28]Human Rights Act 2019 (Qld) s 8.

[29]Human Rights Act 2019 (Qld) s 11(2).

[30] Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 [47].

[31]Commissioner for Young People and Child Guardian v Lister ( No2) [2011]QCATA 87, [53].

[32]Re TAA [2006] QCST 11.

[33]  BCS 169-171.

[34]  [2021] QCATA 6

[35]  Respondent Submissions, 17 November 2022, p 16-19.

[36]  BCS 109-123.

[37]  BCS 57-66.

[38]  BCS 63.

[39]  BCS 48-53.

[40]   NTP 119.

[41]  BCBS 54-55.

[42]Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27.

[43]  s 13 Human Rights Act 2019 (Qld).

[44]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2022] QCAT 413

  • Court:

    QCAT

  • Judge(s):

    Member McDonald

  • Date:

    20 Dec 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 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 Lister (No 2) [2011] QCATA 87
1 citation
Jump To
Cite 1 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
3 citations
Jump To
Cite 1 - [2014] QCATA 27
Cite 2 - [2014] QCATA 27
Cite 3 - [2014] QCATA 27
Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6
1 citation
Jump To
Cite 1 - [2021] QCATA 6
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

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

Message not sent!

Something went wrong. Please try again.