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

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

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

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

PARTIES:

JCW

(applicant)

 

v

 

DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL

(respondent)

APPLICATION NO:

CML319-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

28 February 2022

HEARING DATE:

30 November 2021

HEARD AT:

Townsville

DECISION OF:

Member Pennell

ORDERS:

  1. The decision of the Director General, Department of Justice and Attorney General dated 15 July 2020 that the applicant’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the decision that the applicant’s case is not an exceptional case
  1. The publication of the contents of any document or thing filed in or produced to the Tribunal and any evidence given to the Tribunal by any witness is prohibited to the extent that it could lead to the identity of the applicant or any member of the applicant’s family or any non-party to the proceedings

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY EVIDENCE – MISCELLANEOUS MATTERS – the applicant previously held a positive notice and a blue card – the applicant worked as a case worker in a youth detention centre – a former detainee of the youth detention centre became an adult prisoner in a correctional facility – the adult prisoner then sought out the applicant for assistance – the applicant and adult prisoner formed a romantic relationship – the applicant advocated on behalf of the adult prisoner to the parole board – the applicant assisted the adult prisoner upon his release on parole – the applicant has a young child – child protection intervention undertaken by the Department of Children, Youth Justice and Multicultural Affairs – a child protection safety plan implemented – whether the applicant’s circumstances, association and former relationship with a recidivist and violent adult prisoner renders her case as an exceptional one  

EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF EVIDENCE – ORDERS – NON PUBLICATION OF IDENTITY – the Tribunal exercising   its own initiative to de-identify the applicant, members of the applicant’s family and other witnesses – documentation produced to the Tribunal by the Department of Children, Youth Justice and Multicultural Affairs which could lead to the identification of a child and a non-party to the proceedings – the publication of the applicant’s identity or the identity of any witnesses and non-parties would be contrary to public interest 

Child Protection Act 1999 (Qld), s 10(b), s 13 and              s 61(f)(iii)

Criminal Code Act 1899 (Qld), s 1

Domestic and Family Violence Protection Act 2012 (Qld), s 159(1)

Family Law Act 1975 (Cth), s 60B(1)(a)

Justices Act 1886 (Qld), s 4 and s 42

Penalties and Sentences Act 1992 (Qld), s 4

Police Powers and Responsibilities Act 2000 (Qld), s 382

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 20(2), s 24(1), s 28(3)(a), s 28(3)(b),         s 28(3)(c), s 66, s 66(1), s 66(3), s 145 and s 152

Regulatory Offences Act 1985 (Qld), s 5, s 6 and s 7

State Penalties and Enforcement Act 1992 (Qld), s 4 and Schedule 2

Transport Operations (Road Use Management) Act 1995 (Qld), Schedule 4

Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld), s 182, Part 3 and Part 7

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(1)(d), s 361, s 360, Schedule 2, Schedule 4 and Schedule 7

Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28

Chief Executive Officer, Department of Child Protection v Scott (No 2) (2008) WASCA 171

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

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

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350

HAM v Director General, Department of Justice and Attorney General [2021] QCAT 28

Kent v Wilson [2000] VSC 98

Lewis v Norman [1982] 2 NSWLR 649

Perry and Browns Patents (1930) 48 RPC 200

Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1

Re TAA [2006] QCST 11

SBL v Director General, Department of Justice and Attorney General [2020] QCAT 405

The Queen v Kairouz [2017] QSC 270

APPEARANCES & REPRESENTATIONS:

 

Applicant:

D Musumeci of Counsel instructed by A Cone, Solicitor of Townsville Community Law Inc.

Respondent:

J Capper, Solicitor, In-House Advocacy Officer for Blue Card Services

REASONS FOR DECISION

Introduction

  1. [1]
    On a number of earlier occasions, the applicant (‘JCW’) was issued with a positive notice and a blue card.[1]  In May 2019, the Department of Justice and Attorney General (‘the respondent’) received complaint information in regard to JCW’s employment at a youth detention centre and her relationship with a former detainee of that detention centre.  The details of the complaint information are discussed later in these reasons.   
  2. [2]
    The respondent advised JCW of a proposal to issue her with a negative notice.  She was invited to provide submissions as to why that negative notice should not be issued. 
  3. [3]
    JCW responded and after an appropriate assessment of her submissions and her eligibility, the respondent determined that the most appropriate action was to issue her a negative notice pursuant to the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’).[2] 
  4. [4]
    JCW disputes the respondent’s decision and subsequently filed an application with the Tribunal for a review of that decision.[3]

The Tribunal’s role

  1. [5]
    JCW has applied for a review of the respondent’s decision to issue her with a negative notice.  Included in the Tribunal’s determination is not whether the original decision was the correct or preferable one based on the material which was before the respondent when the original decision was made, but rather whether the decision of the Tribunal is the correct and preferable one based on the material before the Tribunal at the time of the review hearing.[4]  
  1. [6]
    In undertaking the review, the Tribunal ‘stands in the shoes’ of the respondent and is obliged to hear and decide JCW’s application by way of fresh hearing on the merits of the application.[5]  The principle that the welfare and best interests of children are paramount must be applied in reviews relating to child related employment decisions.[6] 
  2. [7]
    The purpose is to produce the correct and preferable decision[7] and the Tribunal can either confirm or amend the respondent’s decision; or set aside the respondent’s decision and substitute that decision with its own decision;[8] or set aside the respondent’s decision and return the matter for reconsideration to the respondent with the directions the Tribunal considers appropriate.[9]

Exceptional Case

  1. [8]
    An observation of the Working with Children Act is that the intent of the legislation is not to punish JCW twice; it is about implementing the paramount principle in regard to protecting children from future abuse.[10] 
  2. [9]
    In reaching a conclusion in regard to child related employment matters, regard must be given to the context, intent, purpose and design of the Working with Children Act as it applies the protection of children.[11]  The Working with Children Act speaks about an exceptional case and although that term is not defined within the legislation, it has been the subject of prior discussions in many jurisdictions, including the Tribunal’s appeal jurisdiction.  The term is said to be a question of fact and degree to be decided in each individual case and is necessarily a matter of discretion.[12]
  3. [10]
    In Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1, the Supreme Court of Victoria observed the frequently cited definition of exceptional case which arose out of a warning given by Luxmoore J in Re Perry and Brown's Patents (1930) 48 RPC 200 that it would be unwise to lay down any general rule about what an exceptional case is, discretion should be used.[13]  This approach has since been adopted in Queensland where the Court of Appeal in Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 endorsed those comments just referred to.[14]
  4. [11]
    In reaching the correct and preferable decision, the Tribunal is required to weigh up the competing facts and apply the balance of probabilities principle.  As it is often observed in child related employment matters, a determination of whether an exceptional case exists or not is made after evaluating all the available evidence without any party bearing the onus of proof that an exceptional case exits.[15] 

Respondent’s reasons for decision

  1. [12]
    After receiving the complaint information and the police information, the respondent gave deliberation to the paramount consideration under the Working with Children Act.  That is, the respondent was satisfied that an exceptional case existed in which it would not be in the best interests of children for JCW to be issued with a positive notice and a blue card.[16]
  2. [13]
    The complaint information alleged that a little over twelve years ago, JCW’s employment at a youth detention centre was terminated because she breached a code of conduct.  The information suggested she had groomed and conducted a relationship with a child (‘GFD’) who was under her care at the youth detention centre.  The information went on to suggest that GFD was now an adult prisoner, and JCW allowed him to list her residence as a place for him to live whilst he was on parole.  At around that time, the Department of Child Safety had put in place a safety plan for JCW’s daughter (‘TAD’) prohibiting GFD from residing at JCW’s residence.  Finally, the allegations insinuated that JCW was pregnant and GFD was the father of her unborn child.[17]  
  3. [14]
    Because the alleged conduct occurred during the course of JCW’s employment, the respondent was concerned that this not only constituted an ethical breach of her position as a case worker, but it was also a breach of trust and authority towards a child under her care.  If there was any truth or foundation to the allegations, this raised concerns that she may lack the necessary attributes to judge appropriate behaviour and maintain appropriate boundaries when engaging in regulated child related employment.[18]
  4. [15]
    The respondent also held concerns about JCW’s ability to provide a safe and protective environment for children under her care, including prioritising a child’s best interests and wellbeing.  Children have a right to be cared for by adults who are able to recognise risks and are also capable of promoting and protecting the best interests of children.  The respondent considered that the imposition of a safety plan by the Department of Child Safety indicated a real concern for the protection of a child under her care.
  5. [16]
    Whilst acknowledging that no police charges or disciplinary action arose from the complaint information, the Working with Children Act is protective legislation and the respondent’s decision making role in respect to child related employment allows consideration of the complaint information irrespective of the lack of criminal charges or disciplinary action.  The respondent was satisfied the information raised concerns about JCW’s eligibility to hold a positive notice and a blue card so far as ensuring the safety and wellbeing of children. 
  6. [17]
    Although accepting that JCW required a positive notice and a blue card for the purpose of her employment within the child related employment industry, and a negative notice would undoubtably be prejudicial to her employment prospects, the ultimate issue which impacted upon the respondent’s decision were the features contained within the complaint information.  This led the respondent concluding that an exceptional case existed, and the issuing of a further blue card to JCW would not be in the best interests of children. 
  7. [18]
    The respondent’s deliberations in regard to any hardship or prejudice which JCW may suffer if a negative notice was issued to her was correctly undertaken.  Any such hardship or prejudice arising out of the respondent’s determination is subservient to the respondent’s considerations because the overarching principle is that decisions must be made bearing in mind the protection of children and the alleviation of any potential risks.[19]

JCW’s case

  1. [19]
    JCW is a well educated and mature woman who presents with an articulate persona.  Her career has always been in youth services and as a consequence of being issued with a negative notice; she is no longer employed in that line of work. 
  2. [20]
    Her explanation for being issued with a negative notice surrounded the difficulties she experienced over many years with her ex-partner (‘TFP’).  He is the father of TAD.  Those difficulties culminated in TFP and his wife (‘FPW’) complaining about her association with GFD, a person with whom she assisted in a personal capacity, and with whom she had previously worked with in a professional capacity.  She advocated that the allegations made by TFP and FPW were untrue. 
  3. [21]
    She denied that she had groomed GFD when he was a child detainee within the youth detention centre where she previously worked.  She also denied breaching any code of conduct, and nor was her employment terminated.  In respect to the safety plan put in place by the Department of Child Safety, she acknowledged that the plan existed and that GFD never stayed at her house.  In respect to the allegation that she was pregnant with GFD’s child, she denied this allegation.
  4. [22]
    In explaining her own background, she said that she grew up in a small country town.  Her parents had separated, but her mother had re-partnered.  She lived with her mother, brothers and her stepfather and spent time with her biological father on school holidays.  She had a very close relationship with her mother and stepfather, and her siblings as well as the extended members of her family that lived in the same community.  At an early age, she became quite emotionally resilient because of the dysfunction within her family unit and that dysfunction included periods of domestic violence, alcohol use and the failure of her parents to foster a meaningful and supportive relationship with each other as it related to her care, welfare and development. 
  5. [23]
    As an adult, she maintained a very good relationship with members of her family.  She described having a relatively quiet social life and she enjoyed a circle of close friends.  She was heavily involved in the community through her work, she also engaged with her daughter’s school and actively attended community forums and meetings.  Outside of her employment, she engaged in annual community events such as NAIDOC week, Australia Day celebrations, Anzac Day, and Clean Up Australia Day.
  6. [24]
    She has no convictions, and no recorded disciplinary history with her former employer.  Her only police information relates to her traffic history spanning almost twenty years.  Personally, she rarely drinks alcohol, and has never used or experimented with illicit drugs or smoked cigarettes.  She has no physical, psychological or emotional issues or disorders and is otherwise a fit, healthy and a well educated and intelligent individual who possesses two decades of experience working with and providing youth services within the community. 
  7. [25]
    In respect to her tertiary education, she completed Grade 12 at school, and then studied a Bachelor of Community Welfare at university.  For the past twenty years she has worked with disadvantaged young people and their families, mainly in the youth justice sector by case managing young offenders.  She is passionate about working with young people and their families and those twenty years included three years at a youth justice service, sixteen years at a youth detention centre and one year at a community based organisation providing youth services. 
  8. [26]
    She intends to further her education to include a Bachelor of Nursing and or a Bachelor of Mental Health Nursing.  In the long term, she wants to work in providing health services to remote communities.
  9. [27]
    She is the owner of her own home and she and TFP are the parents of TAD.  She separated from TFP in 2010 when TAD was aged eighteen months.  TFP has since married FPW.  After she separated from TFP, there were many issues surrounding the joint parenting of TAD, which she found to be particularly challenging.   Those challenges arose from bullying, intimidation, threats and harassment from TFP and FPW.  For two years, she and TFP litigated in the family law jurisdiction seeking parenting orders for TAD.  Parenting orders were eventually made in August 2019 whereby she and TFP have equal shared care for TAD.  Recently, the Magistrates Court made a domestic violence protection order naming JCW as the aggrieved, with TFP and FPW as the respondents. 
  10. [28]
    A significant concern surrounding the issuing of a negative notice to her was her relationship with GFD.  Other evidence presented to the Tribunal, including the disclosed material from youth detention centre and the Department of Child Safety corroborates her explanation about that relationship. 
  11. [29]
    She explained that GFD was a person she had previously worked with in a professional capacity at a youth detention centre.  He entered the youth detention centre when he was aged twelve, and it was only much later that her involvement with him on a professional level began.  About eighteen months before he was eventually released from custody, his case manager went on leave, and she was assigned to undertake that role.
  12. [30]
    Almost immediately following GFD’s release from the youth detention centre at the age of seventeen, he re-offended.  Amongst other offences, he dangerously drove a stolen motor vehicle and was involved in an accident.  That accident caused the death of one of his passengers and severely injured two others.  He was held in custody on remand and then received a significant sentence for those offences.  
  13. [31]
    At the end of 2015, which was about three years after GFD was released from the youth detention centre, a psychologist employed at an adult prison contacted JCW.  JCW was told that GFD was enquiring whether she could contact him and provide him support. 
  14. [32]
    When advised of GFD wishing to re-establish contact with her, JCW made inquiries with her supervisor as to whether she could provide him support.  She was given approval to provide that support, but only in a personal capacity outside of her professional role at the youth detention centre. 
  15. [33]
    Over the next three years she supported GFD whilst he remained a prisoner within the adult prison system.  At some point he was transferred to the adult prison located at Maryborough, presumably because he continued to commit offences whilst in custody.  JCW travelled to Maryborough and personally visited him.  Over time, GFD learnt a lot about her on a personal level and they developed feelings towards each other and by April 2018 this culminated into a romantic relationship.
  16. [34]
    In the period surrounding April 2019, the Department of Child Safety received notification about JCW’s relationship with GFD.  An investigation was undertaken.  At this time, GFD was stable in custody, he had started tertiary educational studies and had goals for the future outside the justice system
  17. [35]
    When GFD applied for parole, JCW supported him and agreed to allow her address to be assessed for a suitable parole address.  She had a self-contained granny flat that was a suitable and safe place for GFD to stay on parole, and a place where she could continue to provide support and guidance to him as he transitioned back into the community.  The Tribunal was told that even though the toilet and shower facilities within granny flat were not working, and notwithstanding an ongoing romantic relationship at that time, GFD was to live and sleep in the granny flat but use the toilet and shower in her residence.  When it was suggested to JCW that it was never the intention for GFD to live in the granny flat, but instead would share her house, she rejected that suggestion.  Given the romantic relationship between them at that time, and JCW had driven considerable distances to personally collect GFD in Brisbane when he was released from custody, and she transported him back to Townsville; the only sensible conclusion to be drawn from all that is her suggestion about the living arrangements was questionable, it was devoid of any sense of logic, and it lacked veracity. 
  18. [36]
    When GFD was eventually released from custody, his transition back into the community was much more difficult than JCW anticipated with unexpected further assessments undertaken by the Department of Child Safety on the day he was released.   
  19. [37]
    The Department of Child Safety assessed that GFD living in the granny flat was not suitable.  Consequently, he did not live at her residence, and nor did he ever come into contact with TAD.  Alternative accommodation was sourced at a motel for two weeks prior to him moving into a house across the road from where JCW lived. 
  20. [38]
    Despite having to wear an ankle bracelet tracking device, GFD relapsed back into criminal offending and was returned to custody.  JCW said that since then, she had continued to support him the best she could from a distance but has taken a step back from any personal relationship with him.
  21. [39]
    JCW said that her last personal contact with GFD was when she visited him in custody in October 2020.  He was in custody at that time for offences including his vicious attacks on a defenceless and innocent 93 year old victim, and a fellow prisoner.  When sentenced for those offences in the Cairns District Court in February 2021, the sentencing judge observed that GFD was at that time in a dysfunctional relationship, and although it was not made clear who the other party was[20] the information since disclosed to the Tribunal suggests that this was a reference to JCW.  Her last actual contact with him was in August 2021 when she told him that they no longer were in a relationship
  22. [40]
    JCW acknowledged that looking back over her decision to support GFD and how this relationship came about, her support of him was borne out of a sense of responsibility for him.  Although she and GFD had become close, she felt confident that her support and guidance to him could be undertaken without any impact upon the parenting of her daughter.  In hindsight, she now recognises that if she had the opportunity over again, she would not have entered into a support role for GFD.  

Supporting evidence

  1. [41]
    Contained within the material JCW relied upon were statements from MNT, WSJ and SKD.  They all previously worked with JCW and have knowledge of both her personal and professional life.  Evidence was also provided by PSM, a registered psychologist. 
  2. [42]
    In assessing the statements provided by MNT, WSJ and SKD, along with the personal evidence they each gave during the hearing, their evidence was presented in a frank and forthright manner.  Each of these people were an impressive and credible witness.
  3. [43]
    The evidence of MNT, WSJ and SKD suggested that JCW was an extremely loyal and committed friend and work colleague, and someone who displayed integrity and trust within the workplace of the youth detention centre.  It appears that she was proficient at her craft and was well respected by her colleagues and superiors.
  4. [44]
    In discussing the evidence of PSM, in addition to her oral evidence to the Tribunal, she provided a psychological report.  The contents, assessments and evaluations contained within the report were derived from a single consultation with JCW and the perusal of documentation provided by JCW. 
  5. [45]
    PSM commenced her opinion by attributing blame towards TFP and FPW for what had transpired.  According to PSM, it was their entire fault that JCW was issued with a negative notice, and JCW had suffered the deceitful and injurious consequences of their behaviour.[21]  PSM was concerned and surprised by the credence given to the spurious allegations regarding JCW’s conduct,[22] and the allegations arising from the vindictiveness of TFP and FPW.[23]  Observed within PSM’s report were her comments that JCW told her that the motives behind the behaviour of TFP have arisen from the relationship she formed with GFD.  This relationship has been extensively evaluated by several different departments or agencies, all of whom have arrived at the opinion that there is nothing unethical or unsafe in the relationship of JCW and GFD.[24]
  6. [46]
    JCW went on to tell PSM that she has never introduced TAD to anyone with whom she might have had a social or romantic relationship.  JCW told me, she does not have any intentions now of introducing TAD to GFD.  She explained that it is part of the family law orders that there was to be no contact between TAD and GFD.  JCW said that this formed part of the safety plan and was added into the family law parenting orders to which she had consented.  She also confirmed that GFD never stayed at the granny flat attached to her home.[25]
  7. [47]
    PSM may have based her own opinions on the findings of other enquiries or investigations undertaken by entities associated with JCW’s employment at the youth detention centre, but she appears to have misinterpreted that the basis of those conclusions is not the test to be applied in child related employment matters decided by the Tribunal.       
  8. [48]
    PSM was asked to provide her professional opinion and evaluations to four specific questions.[26]  The first question related to the extent that JCW had insight into her childcare related behaviours, and its impact on society, the victim(s) and any children associated with her.  The question is a little ambiguous in regard to the use of the word ‘victim’, and to whom this was referring. 
  9. [49]
    Nevertheless, it seemed that PSM’s evaluation of the crux of this question was to outline JCW’s ability to keep TAD safe from disputes she had with TFP, and she was capable of promoting and encouraging a relationship between TAD and TFP.  It seems that in providing her assessment, PSM was providing an explanation of JCW’s ability to comply with court orders regarding the joint parenting of TAD, although it is noted that as per those parenting orders JCW was obliged to ensure the best interests of TAD were met by ensuring that TAD has the benefit of both her parents having a meaningful involvement in her life.[27]
  10. [50]
    The second question referenced what risk factors or triggers currently existed which could contribute to any identifiable risk of JCW displaying further offending behaviour.  The words “further offending behaviour” tends to give a connotation that JCW had already displayed previous offending behaviour, however the evidence does not support that suggestion.  PSM considered that JCW’s propensity to engage in behaviours that put TAD at risk were at a lower risk than the average person.  To quantify that assessment, PSM referred JCW’s compliance with the family law parenting orders relating to TAD, and the assessment of the Department of Child Safety that found that TAD was not in need of protection and the allegations were unsubstantiated.
  11. [51]
    In response to the third question, this was a query as to whether JCW possessed any protective factors in relation to childcare related behaviours.  When responding, PSM’s assessment mirrored the assessment she arrived at in responding to the second question, although she did reference part of a test to be applied in child protection hearings by saying that JCW was a parent willing and able to act protectively in caring for her own child.[28] 
  12. [52]
    The fourth question sought an opinion from PSM as to whether JCW demonstrated any preventive strategies to reduce her risk in relation to any childcare behaviour.  Reference was again made to the parenting order for TAD, as well as the granny flat at JCW’s residence.  Although reference was made to the granny flat, no comments were made, or opinions given about JCW’s intention to allow GFD to live in the granny flat upon his release from prison on parole. 
  13. [53]
    A very important feature of these proceedings was the relationship between JCW and GFD, however PSM’s report contained very little reference to that relationship.  Nor was there any reference to whether a relationship currently exists between them, or what recent interactions (if any) have taken place.  The only reference made to GFD lies within the concluding part of PSM’s report where she commented that JCW does not have any intention to introduce TAD to GFD.  
  14. [54]
    A strikingly obvious feature of PSM’s report is a lack of any assessment on whether the relationship between JCW and GFD possessed any potentiality of a future risk to children having particular regard to GFD’s criminal recidivism that had escalated to violent attacks.  This issue is particularly important because the Tribunal is entitled to know whether the risk of harm to children is sufficiently negated so that a conclusion can be reached that there was little or no likelihood of a future risk to children.[29] 
  15. [55]
    An observation about PSM’s evidence is that she arrived at some very definitive assumptions or findings, although it is not entirely convincing about how she was able to make those findings.  Although commissioned to undertake an assessment of JCW and compile a report, it is understandable that she may have the propensity of some type of loyalty to JCW as her client.  However, her purview was to undertake an assessment of JCW, having particular regard to all of the features of the information that she was privy to and unfortunately for JCW, the contents of the report lack any conviction to justify placing any weight on PSM’s assessments.  The report would have been best served to contain opinions on the actual assessment of JCW, rather than basing an assessment on the author’s own perception of the allegations.  The same views are held with regard to her oral evidence.
  16. [56]
    However, notwithstanding the observations just expressed, it is accepted and acknowledged that given the existing acrimonious relationship between JCW and TFP about the parenting of TAD, some comfort can be drawn from JCW’s salutation that should any circumstance arise whereby she exposed TAD to GFD or some other similar situation, she is well aware of the possible consequences that could flow from that.  This is an insightful factor weighing in her favour.   

 JCW’s police information

  1. [57]
    Before addressing the entirety of the disclosed information produced to the Tribunal, it is necessary to discuss the police information as it relates to JCW. 
  2. [58]
    After obtaining the police information and carrying out an assessment of its contents, consideration was given to what the respondent described as the factors relating to JCW’s criminal history information.[30] 
  3. [59]
    While accepting that the traffic history was not of a concern so far as an assessment of her eligibility to hold a positive notice and a blue card, when the respondent provided reasons for issuing the negative notice, reference was made to JCW having multiple charges for traffic offences recorded on her traffic history which formed part of her criminal history.[31]  In consideration of the relevant legislation, JCW’s traffic history does not form part of a criminal history for the following reasons. 
  4. [60]
    JCW’s traffic history shows that she committed thirteen offences over a twenty year period between 1998 and 2008, consisting of eleven speeding offences, one offence of failing to stop at a stop sign and a single occasion when she parked her car in a taxi zone.[32]  On each of those occasions, the penalty imposed was a monetary fine, accompanied by the loss of demerit points from her drivers’ licence.  It is noted that none of those offences are classified within the Working with Children Act as either serious or disqualifying offences.[33]
  5. [61]
    Police information within the Working with Children Act means a person’s criminal history or any investigative information about that person; along with any information as to whether they are or have been a relevant disqualified person or the subject of an application for a disqualification order; or they have been named as the respondent to an application for an offender prohibition order. 
  6. [62]
    A person’s criminal history includes not only every charge preferred against that person, but also every conviction for an offence in Queensland or elsewhere. An offence is defined as an act or omission that renders the person doing the act or making the omission liable to punishment.[34]  A conviction is 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.[35] 
  7. [63]
    When a person is charged, the actual charge is a formal allegation that a person has committed an offence.  The term ‘charge’ as it applies to an offence is defined within the Working with Children Act to mean a charge in any form, including for example a charge upon arrest; a notice to appear; a complaint, or an indictment.[36] 
  8. [64]
    In describing those terms just mentioned, an arrest is explained as consisting of the seizure or the touching of a person’s body with a view to their restraint.  Words may amount to an arrest if in the circumstances of the case they are calculated to bring, and do bring, to a person’s notice that they are under an obligation to submit to that arrest.[37]   
  9. [65]
    The issuing of a notice to appear is a procedure carried out pursuant to the Police Powers and Responsibilities Act 2000 (Qld).  This provides an alternative way for a police officer to start or continue a proceeding against a person and reduces the need for that person’s custody associated with their arrest, and it does not involve the delay usually associated with issuing a complaint and summons under the Justices Act 1886 (Qld) (‘Justices Act’).[38] 
  10. [66]
    A complaint made pursuant to the Justices Act includes the terms “information”, “information and complaint”, and “charge” when used in any Act, and means information, complaint or charge before a Magistrates Court.[39]  It is associated with the issuing of a summons and is a method of instituting proceedings (where permissible) against a person.  A complainant means a person who makes the complaint before a justice of the peace and initiates those proceedings[40] 
  11. [67]
    An indictment means a written charge for an indictable offence preferred against an accused person in order for that person’s trial or sentence in either the District Court or the Supreme Court jurisdictions.[41]
  12. [68]
    In Queensland, offences are defined into two categories, namely, criminal offences and regulatory offences.[42]  Criminal offences comprise of crimes, misdemeanours and simple offences.  Crimes and misdemeanours are indictable offences; that is to say, an offender cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment.  Whereas a person guilty of a regulatory offence or a simple offence may be summarily convicted before a Magistrates Court.[43]
  13. [69]
    When assessing the information contained within JCW’s traffic history, the recorded offences can be categorised in a general sense as either traffic or parking offences.  The nature of the offences involved exceeding the designated speed limit,[44] disobeying a stop sign[45] and parking in a designated taxi zone.[46]  These types of offences are simple offences.    
  14. [70]
    Absent from JCW’s traffic history is any reference to the finalisation of any of those offences before a court, or indeed an absence of any reference to a court imposing a penalty.  Therefore, it seems that all of the offences were instituted by way of an infringement notice[47] pursuant to the State Penalties Enforcement Act 1999 (Qld) (‘SPE Act’).  An infringement notice for an offence[48] offers the person to whom it is issued the opportunity to have the offence dealt with by paying an amount specified in the notice.  This dispenses with having the offender appear at court.
  15. [71]
    The offences recorded on JCW’s traffic history are prescribed under a regulation for which the SPE Act applies[49] and were instituted and finalised pursuant to the SPE Act.  She was not charged per se with the offences on her traffic history; she was issued with infringement notices and infringement notices are not charges.
  16. [72]
    In conclusion, in circumstances where a person has offences recorded on their traffic history, consideration should be given to whether the offences arose out of the person being charged, or the offences have otherwise been dealt with by way of an infringement notice, or by a court. 
  17. [73]
    The offences recorded in JCW’s traffic history could never form part of a criminal history as defined in the Working with Children Act.  The description provided as to what constitutes a criminal history includes every charge and conviction taking into account what those two terms mean.  Therefore, unless offences recorded on a traffic history arise out of a charge or a conviction, they do not fulfil the description as provided by the legislation and should not be categorised as part of a criminal history. 

The disclosed material and the background information contained therein

  1. [74]
    Produced to the Tribunal was information and reports from the youth detention centre where JCW was employed,[50] along with the records relating to her child protection history recorded with the Department of Children Safety.[51]
  2. [75]
    When considering the contents of the disclosed material, the Tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record[52] and may inform itself in any way it considers appropriate.[53]  However, in doing all of that, the rules of natural justice must be observed.[54] 
  3. [76]
    The disclosed material revealed that JCW began working at the youth detention centre as a case worker in 2001.  During her employment, she managed various children at the detention centre, including GFD.  Within her role, she was responsible for delivering culturally appropriate casework and counselling services that promoted the safety and wellbeing of children within the youth detention centre.  She was required to facilitate a positive progression for those children through the stages of their custody and assist their avoidance of further offending and successful             re-integration with families and the community.[55]
  4. [77]
    GFD had an extensive criminal history as a juvenile and was a regular detainee at the youth detention centre for long periods.  He was first detained at the age of twelve,[56] and over the next five years, there were various periods when he was in and out of detention.  He amassed a significant juvenile criminal history including being sentenced at the age of fifteen to twelve months’ detention for multiple offences.  His criminal history depicts further periods of detention as a child for offences including escaping lawful custody and serious assaults on custodial officers.  Although it is not entirely clear from the information disclosed, at some point he became the subject of a long term guardianship order made by the Childrens’ Court granting his guardianship to the Department of Child Safety until he turned eighteen.[57]   
  5. [78]
    GFD was known to JCW through her employment at the youth detention centre, and she became his case worker for the 18 months prior to his release from custody.  His release took place just before his eighteenth birthday. 
  6. [79]
    Soon after GFD’s release from the youth detention centre, JCW was interviewed by the deputy director of the youth detention centre regarding her involvement with former child detainees of the youth detention centre.[58]  Discussions were held surrounding her professional boundaries because she had four ex-detainees as Facebook ‘friends’, although GFD was not one of them.  In a later report, her employer assessed that there was no credible evidence to suggest that she developed any form of personal relationship with GFD between his release from the youth detention centre to when she started visiting him in the adult prison some three years later.[59] 
  7. [80]
    It was noted in the report; ‘third hand’ information had been received suggesting JCW and GFD were seen holding hands in the period following his release from the youth detention centre.  However, the report identified that GFD was placed in an adult prison soon after his release, and therefore the veracity of that information was questionable.[60]        
  8. [81]
    Six weeks after his release from the youth detention centre, GFD was back in custody, this time as an adult offender for what was the first of the twenty-two entries in his adult criminal history.[61]  He dangerously drove a stolen motor vehicle with seven other passengers and was involved in an accident.  A young female passenger was killed, and two others suffered grievous bodily harm.  In May 2014 he was sentenced to five and a half years imprisonment, and this was the start of an accumulation of his lengthy adult criminal history.
  9. [82]
    His offending did not stop there.  He committed multiple offences while in custody including destroying or damaging property belonging to the Corrective Services.  Because of his behaviour in custody and the commission of those offences, he experienced continual imprisonment for over six years.  He was eventually released on parole in April 2019.
  10. [83]
    Sometime around late 2015 to early 2016 during the period he was serving his prison sentence, GFD reached out to JCW for assistance.[62]  He was having a rough time serving his sentence.  Because he did not have any family support, a prison psychologist asked GFD if there was anyone he wanted to engage with.  GFD suggested that JCW could help.[63]  The prison psychologist then contacted JCW, who in turn started visiting GFD in prison.  At that time GFD was aged about twenty-one, and it had been approximately three years since his release from the youth detention centre.  Subsequently he was no longer classed as JCW’s client in the true sense of her role at the youth detention centre. 
  11. [84]
    At almost an immediate time after re-establishing contact with GFD, JCW approached her supervisor to discuss whether her contact with him was in any way a conflict of interest in respect to her role as a case worker within the youth detention centre. 
  12. [85]
    JCW’s supervisor wrote to her and said –

After reading through the policy, I do not foresee that there is an actual, potential or perceived conflict due to –

  • Your position at [youth detention centre] has no impact on the treatment [GFD] receives or will receive at [prison] or with any other QLD gov service or NGO, as when you interact with [GFD] it will be outside of your official duties,
  • You are not receiving any favours or gifts due to your interactions with [GFD],
  • You will not be disclosing any confidential information about [GFD] or to [GFD] through your interactions with [GFD],
  • When you are interacting with [GFD], you are not in a position of power where you could influence any negative outcomes towards [GFD],
  • [GFD] will not be readmitted back to [youth detention centre] at any stage due to age,
  • Your interactions with [GFD] are not coherced (sic), and there is no expectation for you to continue your engagement with [GFD] at any time.[64] 
  1. [86]
    JCW continued to visit GFD in prison and over time, a romantic relationship developed.  When he was due for parole, she advocated on his behalf and made submissions to the parole board.  She proposed that if he was paroled, he could live in the granny flat at her residence.
  2. [87]
    JCW’s young daughter TAD lived with her; and she was in the process of a custody dispute with TFP.  Coinciding with her proposal that GFD live at her residence, the Department of Child Safety received a flow of information relating to JCW’s romantic relationship with GFD. 
  3. [88]
    By the time GFD was released from prison on parole, JCW had agreed to the Department of Child Safety’s safety plan surrounding the contact between TAD and GFD.  GFD did not move into JCW’s residence as proposed, instead alternative accommodation was sourced for him.
  4. [89]
    GFD’s performance and behaviour on parole led to further offending.  He used methylamphetamines and tampered with his urine samples to mask the results.  On four occasions, he removed or tried to remove the electronic monitoring device attached to his ankle (monitoring bracelet). Surprisingly, his parole was not suspended for that behaviour, and he was given further opportunities.  He was eventually returned to custody in October 2019 when he was convicted of other offences.  He was later released back into the community on parole in December 2019, a short four months prior to assaulting a defenceless 93 year old victim.
  5. [90]
    In April 2020, an innocent 93 year old man had just driven his wife to a hair dressing salon.  While his wife was inside the salon, he waited outside in the family motor vehicle reading a newspaper.  GFD approached him, dragged him out of the vehicle and assaulted him.  In no doubt what was a horrifying and devastating experience for him, the victim was callously dragged along the carpark before GFD stole his motor vehicle.  The victim was hospitalised as a result.  When later arrested and charged with attacking the victim, GFD was remanded in custody.  While on remand, he viciously assaulted another prisoner by punching, kneeing, kicking and stomping on his head. This prisoner also required hospital treatment.
  6. [91]
    GFD later appeared in the District Court at Cairns where he was sentenced for seven offences, including the unnecessary and unwarranted acts of gratuitous violence on the 93 year old victim and the other prisoner.[65]  The court noted that the assault offences were a display of unpredictable volatile behaviour and were a representation of a worsening in his criminal history.  The overall head sentence imposed upon him was five years imprisonment with a parole eligibility date set in December 2021.[66] 
  7. [92]
    The general theme of GFD’s life, as displayed within the court’s sentencing remarks and the information disclosed to the Tribunal paints an image of a person who has actively engaged in criminal conduct from a very early age and has spent a vast majority of his life from the age of twelve in custody.  He was the product of the child protection system where an order was made placing him into the guardianship of the Department of Child Safety.[67]
  8. [93]
    GFD spent a significant amount of his young life detained within a youth detention centre for offences including sexually assaulting his siblings, motor vehicle and property offences, as well as escaping lawful custody and serious assaults on youth justice officers at the detention centre.  His criminal history also reflected his conduct of dangerously driving a stolen motor vehicle and causing the death of one of his passengers.     
  9. [94]
    The disclosed information also reveals that GFD has a long history of substance abuse that started with alcohol as a very young child.  This progressed to a range of illicit drugs, including LSD, ecstasy and methylamphetamines.  He has a significant history of self-harm, along with a number of psychiatric diagnoses including ADHD, post-traumatic stress disorder and personality disorders, as well as substance misuse disorders.
  10. [95]
    Contained within the material provided to the Tribunal were reports furnished by senior executives associated with the youth detention centre.  Those reports related to the association and relationship of JCW and GFD.  It was noted that GFD was at that time aged twenty-four, and therefore he could not be classified as a young person in the justice system and could not have been under JCW’s professional care as part of her employment at the youth detention centre.  The report identified that pursuant to the Crime and Corruption Commission’s guidelines, it was difficult to perceive how under those circumstances their relationship could influence her judgment or decisions whilst working at the youth detention centre.  Although her judgment could be considered questionable by entering into a personal relationship with a former detainee at the youth detention centre, that in itself could not be considered a conflict of interest.[68]
  11. [96]
    There was no evidence to suggest that JCW entered into a relationship with GFD during the time he was a detainee at the youth detention centre, or within the immediate time between his release from juvenile detention to when he was remanded into an adult prison.  When JCW later commenced providing support for him, this was undertaken after a period of three years during which time she had lost contact with him.  Any assistance she provided to him was undertaken in a private capacity. 
  12. [97]
    The report recognised that JCW did discharge her obligations to her employer by seeking clarification as to whether her assistance to GFD was a conflict of interest.[69]  Her employer’s policy relating to an off duty contact with young people in the justice system did not apply and there was no existing policy that related to employees entering into relationships with partners who have a criminal history.      
  13. [98]
    The report observed that the perception of a case worker entering into a domestic relationship with a habitual criminal with a long history as a detainee within a youth detention centre could be viewed as being ‘not a good look’ and may be perceived to compromise the employee within their duties.  However, the report suggested there were other staff working at the youth detention centre who themselves had criminal convictions and it was unclear how that situation differentiated from that of JCW who has an association with a convicted criminal who was in custody.[70]   
  14. [99]
    In regard to her child protection history, the material produced to the Tribunal by the Department of Child Safety referenced a notification dating back to 2014 that JCW’s partner at that time had a history of violence towards women and had attempted to ‘run down’ his own children.  In assessing that information, the Department of Child Safety reached a conclusion that insufficient information existed to substantiate that TAD had been exposed to any domestic violence or had suffered harm.[71]  Given the finding of that investigation, and in consideration of that information, no weight is attributed to that allegation so far as a determination of the correct and preferable decision in this matter.  
  15. [100]
    In respect to GFD, reference is made in the disclosed material to a summary of his child protection history.  At the age of twelve, he was assessed as the perpetrator of a sexual abuse when he was charged with sexually assaulting his younger brother and sister.[72]  Scant information is available in respect to the specifics of those offences.  However, when notified of the proposal that GFD be paroled to JCW’s house, the Department of Child Safety considered an investigation was warranted because TAD lived with JCW.
  16. [101]
    The concerns for the Department of Child Safety revolved around a potential risk that GFD would sexually assault TAD should he move in and live with them.  When interviewed in 2019 by the Department of Child Safety about those concerns, JCW was open and forthright in her responses.  She disclosed that she had extensive knowledge of GFD’s history through working with him at the youth detention centre.  She was aware that his history included a sexual offence as a young child, and there were other offences including those previously discussed in these reasons.[73]  
  17. [102]
    Officers from the Department of Child Safety interviewed TAD.  No disclosures relating to any form of harm such as emotional, physical or psychological harm were made and the concerns held by the Department of Child Safety were somewhat eased when JCW agreed to follow a long term safety plan to ensure TAD was kept safe from any potential harm.[74]
  18. [103]
    When assessing the information contained within the material, caution must also be exercised when accepting or placing weight on the contents of a document, particularly in circumstances when the author of the document or report has not been called upon to have their comments cross-examined before the Tribunal.  Afterall, the information contained within the disclosed documents are the comments or observations of the authors, and without being properly tested, it is possible at times for those comments to be tainted or flavoured by the author to meet their own personal observations, assessments or prejudices.  Those comments have to be weighed against the factual evidence contained within the information relied upon.
  19. [104]
    For example, in this matter there are at least three references within the Department of Child Safety reports that GFD is a ‘registered sex offender’.  Although on the balance of probabilities it can be accepted that he has committed a sexual offence, albeit at a very young age, the factual evidence of the disclosed information does not support the suggestion that he is a registered sex offender pursuant to any laws, in particular the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).  In the absence to the contrary, the references to GFD being a registered sex offender were an enrichment of the facts in respect to his actual status.[75] Notwithstanding the attempts to suggest that a ‘registered sex offender’ was living with JCW, the reports specifically clarified that no evidence existed of TAD being at home when GFD was at the premises.[76] 
  20. [105]
    Overall, the child protection assessment is vague.  One part of the assessment suggested that TAD was at risk of being placed at an unacceptable risk of harm, yet because no evidence existed of any contact between TAD and GFD, the concerns did not reach the threshold for a child protection notification but were instead recorded as a child concern report.
  21. [106]
    Generally, it is acknowledged and accepted that the Department of Child Safety received information which warranted an investigation into a potential risk of harm to TAD should GFD be allowed to associate with her.  However, it appears that no discernible or credible evidence supported the allegations.    
  22. [107]
    Although all of the disclosed material or information was informative in regard to the background of JCW and her relationship with GFD, the correct and preferable decision does not revolve around whether JCW has breached a code of conduct or acted unethically which would warrant some form of discipline; it is more so a case where the Tribunal is required to reach a conclusion of whether JCW’s case is exceptional after considering the evidence and applying the paramount principle as provided within the Working with Children Act.    

Discussion and whether JCW displays insight

  1. [108]
    In this matter, the Tribunal has been asked to reach a decision based on information concerning JCW’s close and personal relationship with GFD.  He is appropriately described as a recidivist offender who has a propensity to engage in illicit drug use, along with a propensity of escalating violent behaviour.  In addition to all of that, there is a suggestion that JCW ignored the boundaries of her role as a case worker and developed unhealthy and inappropriate relationships with youth offenders within a youth detention centre. 
  2. [109]
    JCW does not shy away from the fact that she had developed those relationships within her role as a case worker, but she argues that those relationships were undertaken within the confines of her professional role.  So far as her relationship with GFD, she advocates that although a personal romantic relationship did develop, it was in no way connected to her employment, and not at any stage did it compromise her position whereby children would be placed at a potential future risk.  There is merit in her submissions on this point. 
  3. [110]
    It has to be acknowledged and identified that JCW has not committed any offence, and although she has been the subject of an internal review by her then employer, she was not disciplined for her relationship with GFD.  Whilst acknowledging and accepting those features, the main focus for the Tribunal’s determination is not whether any punitive or disciplinary action was taken against her; but rather whether JCW recognises the potential risks posed to children should she fail to acknowledge the existing circumstances and fail to display a significant level of insight into how her relationship with GFD had the potential to expose children to an unacceptable level of risk. 
  4. [111]
    When undertaking an assessment of whether or not she displayed insight to a standard that meets the established principle, guidance can be found in an earlier Tribunal decision of Re TAA where it was explained that person aware of the consequences of their actions on others is less likely to re-offend than a person who has no insight into the effect those actions had on others. This is particularly important because children are entirely dependent on adults having insight into their own actions.[77]
  5. [112]
    In that regard, JCW should at least be able to demonstrate awareness, be insightful and acknowledge any identifiable flaws and deficiencies within her character at the time of participating in what she described was her romantic relationship with GFD.  She should also have the ability to demonstrate that she able to recognise and accept the subsequent or possible consequences than can flow from any such identifiable flaws or deficiencies, if they exist.[78]
  6. [113]
    Previously discussed in these reasons was JCW’s acknowledgement that in hindsight she is now able to identify the risks associated with her relationship with GFD, and if given the opportunity again, she would not have entered into a support role or romantic relationship with him.  This is a demonstration or a display of an awareness of the possible consequences that could flow from such a relationship, and the potential future harm to children.     

Conclusion

  1. [114]
    Although there are no recorded charges, convictions or disciplinary information which is unfavourable to JCW, if the Tribunal is aware of other information about her that provides a reasonable belief that the information is relevant to an exceptional case conclusion, then a negative notice can be issued to her.[79]   
  2. [115]
    JCW was the subject of a number of internal reviews and investigations regarding her association with GFD.  Her employer at the youth detention centre had not initiated any discipline action against her, and nor was she the subject to any other sanctions. However, it is not the Tribunal’s role to establish her guilt or innocence on any particular issue.  That role remains the domain of another jurisdiction and the Tribunal’s role is restricted to applying the paramount principle and undertaking an analysis and evaluation of risk and the preservation of potential future harm. [80]       
  3. [116]
    Arriving at the correct and preferable decision, and at the forefront of any consideration of whether an exceptional case exists is the prevention of potential future harm to children.  Any analysis and evaluation of the risk must be based on all the evidence and other material properly before the Tribunal at the time the correct and preferable decision is made.[81]
  4. [117]
    At this point it should be noted that there was no evidence to confirm that JCW had engaged in an inappropriate relationship with a child under her care.  Nor is there any evidence to support the allegation that she was dismissed from her employment because she breached a code of conduct for grooming a child detainee at the youth detention centre.  The substance of those allegations has to be weighed against the background of the family law dispute occurring at the time of the allegations being made; along with whom that dispute involved; and the subsequent and continual social media activities that led to the making of a domestic violence protection order against TFP and FPW.  Although not formally identified as the notifier or author of the complaints made, the only reasonable and sensible conclusion when applying the balance of probabilities is to consider that TFP and FPW were involved in a systematic campaign against JCW to bolster their own position in the family law dispute.     
  1. [118]
    Notwithstanding the conclusions just reached, the test imposed upon the Tribunal to reach the correct and preferable decision in child related employment decisions is extremely rigorous.  Being mindful that it could never be the intention to impose any additional punishment upon JCW, the focus is appropriately on whether there is a potential risk to children and any decision made must be according to the principle of the legislation.  Afterall, the overarching feature of the Working with Children Act is that it is protective legislation in respect to children and young people. 
  2. [119]
    In respect to the complaint information relating to JCW which was the catalyst for the respondent issuing the negative notice, it seems that apart from the information confirming a relationship between JCW and GFD and her premises were to be used for him to live at, the remainder of the allegations should be rejected.
  3. [120]
    The main contributing feature of this matter lies with the former romantic relationship between JCW and GFD.  Although it may be viewed as an unusual relationship given the age difference and the nature of where they met, it was nevertheless a relationship that existed between two consenting adults.  There is no evidence to support any allegation that their relationship commenced other than under the circumstances reported in the disclosed material and JCW’s evidence. 
  4. [121]
    The evidence shows that she acknowledged the potential conflict with her employer and made the appropriate approaches to her supervisors about the circumstances.  This was a display of insightfulness on her behalf of the associated risks. 
  5. [122]
    Her association with GFD was evaluated by her superiors and assessed as appropriate, with no actual, potential or perceived conflict with her duties as a case worker at the youth detention centre.  The evidence reveals that other fellow employees in similar situations to JCW are employed at the youth detention centre notwithstanding some employees had criminal histories.
  6. [123]
    The evidence shows that there is no longer a relationship between JCW and GFD, and she has acknowledged the risks associated with that relationship.  The circumstances of this matter reveal that JCW displays an appropriate level of insight into her involvement with GFD and the current environment does not reveal a potential future risk to children.
  7. [124]
    Having considered all the evidence in this matter, is it appropriate to set aside the respondent’s decision dated 15 July 2020 that JCW’s case was exceptional within the meaning of section 221(2) of the Working with Children Act and substitute that decision with the correct and preferable decision that JCW’s case is not an exceptional case.

Non-publication decision

  1. [125]
    The Working with Children Act, as the enabling Act, expressly provides that review hearings for child related employment decisions must always be held in private,[82] but there is no provision within the enabling Act to de-identify a party.  
  2. [126]
    In respect to the relationship between the enabling Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the enabling Act is the legislation which confers review jurisdiction on the Tribunal, and it may state the Tribunal’s functions.  However, as already just identified, the enabling Act is silent in respect to de-identifying a party.
  3. [127]
    Therefore, because the Working with Children Act is silent on providing that authority to de-identify a party, it is the provisions of the QCAT Act which provides the authority for the Tribunal to apply its discretion in that respect.[83] 
  4. [128]
    Because neither of the parties applied for a de-identification order, the QCAT Act allows the Tribunal to exercise a discretion to de-identify the contents of a document or other thing produced to the Tribunal;[84] evidence given before the Tribunal; or information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified.[85]
  5. [129]
    The evidence provided to the Tribunal during these proceedings not only identified JCW, but also identified witnesses, the child TAD and GFD who is a non-party to these proceedings.  The Department of Child Safety and the youth detention centre provided much of the information that is highly sensitive, and it would not be in the interests of justice to identify any party or non-party to this matter.
  6. [130]
    Furthermore, there is evidence of a domestic violence protection order where JCW is identified, along with TFP and FPW.  In that regard, consideration should be given to prohibition provided by the Domestic and Family Violence Protection Act 2012 (Qld) with respect to publishing the identity of parties involved in domestic violence proceedings.   
  7. [131]
    Therefore, the publication of the contents of any document or other thing filed in or produced to the Tribunal in these proceedings, and any evidence given to the Tribunal by any witness is prohibited to the extent that it could lead to the identity of JCW, or any member of her family or any non-party to the proceedings.

Footnotes

[1]  Positive notices and blue cards issued on 22/03/2004, 18/06/2010, 15/03/2013 and 28/05/2016.

[2]  Negative notice issued on 15/07/2020.

[3]  Application filed with the Tribunal on 12/08/2020.

[4] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

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

[6] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.

[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[8]  If the Tribunal decides to set aside an exceptional case decision, the Tribunal’s decision does not take effect until the end of the period within which an appeal against the Tribunal’s decision may be started; or if the Chief Executive appeals the Tribunal’s decision, the appeal is decided or withdrawn.  This overrides the provisions of the Queensland Civil, and Administrative Tribunal Act 2009 (Qld), ss 145 and 152 that provides for the effect of an appeal on the decision of the Tribunal. 

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[10]  Queensland Parliament Hansard, 14/11/2000 at page 4391.

[11]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] citing the determination of Hedigan J in Kent v Wilson [2000] VSC 98, [22].

[12]  The approach applied by Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 in adopting the warning of Luxmore J in Perry and Browns Patents (1930) 48 RPC 200 that it would be most unwise to lay down any general rule with regard to what is an exceptional case.  All these matters are matters of discretion.  This was adopted by the Queensland Court of Appeal in Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34] and cited by the Tribunal in FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350, [18].

[13]Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1.

[14] Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34].

[15] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].

[16]  Respondent’s material at BCS-10.

[17]  Respondent’s material at BCS-2.

[18]  Respondent’s material at BCS-10.

[19]  Respondent’s material at BCS-12.

[20]  Respondent’s material at BCS-43 to BCS-49.  Sentencing remarks of Judge Fantin, District Court at Cairns dated 05/02/2021.

[21]  PSM’s report dated 08/04/2021 at page 3, paragraph 11.

[22]  PSM’s report dated 08/04/2021 at page 3, paragraph 14.

[23]  PSM’s report dated 08/04/2021 at page 3, paragraph 14.

[24]  PSM’s report dated 08/04/2021 at page 3, paragraph 12.

[25]  PSM’s report dated 08/04/2021 at page 3, paragraph 13.

[26]  The format of the questions were derived from Order 2 of the Tribunal’s Orders dated 03/02/2021.

[27] Family Law Act 1975 (Cth), s 60B(1)(a).

[28] Child Protection Act 1999 (Qld), s 10(b).

[29] SBL v Director General, Department of Justice and Attorney General [2020] QCAT 405, [30].

[30]  Respondent’s material at BCS-9, paragraph 7.

[31]  Respondent’s material at BCS-9.

[32]  Respondent’s material at BCS-17.

[33] Working with Children (Risk Management and Assessment) Act 2000 (Qld), Schedule 2 and Schedule 4.

[34] Criminal Code Act 1899 (Qld), s 1.

[35] Working with Children (Risk Management and Assessment) Act 2000 (Qld), Schedule 7 – Dictionary.    A similar definition is found in the Penalties and Sentences Act 1992 (Qld), s 4.

[36]Working with Children (Risk Management and Assessment) Act 2000 (Qld), Schedule 7 – Dictionary.

[37] Lewis v Norman [1982] 2 NSWLR 649, 655 citing Halsbury’s Laws of England, 4th edition, volume 11, paragraph 99, page 73 and referred to in The Queen v Kairouz [2017] QSC 270, [27].

[38] Police Powers and Responsibilities Act 2000 (Qld), s 382.

[39] Justices Act 1886 (Qld), s 4.

[40] Justices Act 1886 (Qld), s 42

[41] Criminal Code Act 1899 (Qld), s 1; Justices Act 1886 (Qld), s 4.

[42]  An offence not otherwise designated is a simple offence.  Regulatory offences are classified as offences created in respect to three common illegal activities: taking shop goods, failing to pay for services and minor damage to property.  Regulatory Offences Act 1985 (Qld), ss 5, 6 and 7.

[43] Criminal Code Act 1899 (Qld), s 3.

[44]Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld), Part 3: Speed limits.

[45] Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld), Part 7; Giving way at a stop sign, stop line, a give way sign, or a give way line applying to the driver.

[46] Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld), s 182; Stopping in a taxi zone.

[47] Transport Operations (Road Use Management) Act 1995 (Qld), Schedule 4 – Dictionary.

[48]  An offence for a particular infringement notice means the offence stated in the infringement notice: State Penalties Enforcement Act 1999 (Qld), Schedule 2 – Dictionary.

[49] State Penalties Enforcement Act 1999 (Qld), Schedule 2 – Dictionary.

[50]  Notice to produce documents at NTP-1 to NTP-26; NTP-121 to NTP-168.

[51]  Notice to produce documents at NTP-27 to NTP-120.

[52] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).

[53] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c).

[54] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).

[55]  Notice to produce documents at NTP-1.

[56]  In October 2007.

[57] Child Protection Act 1999 (Qld), s 61(f)(iii). 

[58]  Interviewed on 26/03/2013.

[59]  Notice to produce documents at NTP-14.

[60]  Notice to produce documents at NTP-14.

[61]Although GFD was minor aged 17, prior to 12/02/2018, the Queensland justice system treated children aged seventeen as adults.  The law was changed to treat seventeen year-olds under the Youth Justice Act 1992 (Qld) instead of as adults bringing Queensland into line with legislation in all other Australian jurisdictions.

[62]  Approximately in the period of late 2015 to early 2016.

[63]  Notice to produce documents at NTP-13.

[64]  Email dated 19/04/2016; Notice to produce documents at NTP-14. 

[65]  Sentenced on 05/02/2021.

[66]  Respondent’s material at BCS-49.  Sentencing remarks of Judge Fantin, District Court at Cairns dated 05/02/2021 at page 7.

[67] Child Protection Act 1999 (Qld), s 13.  Because the Childrens’ Court granted guardianship of GFD to the Department of Child Safety under a child protection order, the Department of Child Safety had the right and responsibility to make decisions about his care; and had all the powers, rights and responsibilities in relation to what would otherwise have been vested in the person having parental responsibility for making decisions about GFD’s long term care, wellbeing and development.

[68]  Notice to produce documents at NTP-15.

[69]  Notice to produce documents at NTP-16.

[70]  Notice to produce documents at NTP-20.

[71]  Notice to produce documents at NTP-27 to NTP-29.

[72]  Notice to produce documents at NTP-34.

[73]  Notice to produce documents at NTP-66.  Interview undertaken on 10/04/2019.

[74]  Notice to produce documents at NTP-96.

[75]  Notice to produce documents at NTP-103, NTP-104 and NTP-118.

[76]  Notice to produce documents at NTP-118.

[77] Re TAA [2006] QCST 11, [97].

[78] HAM v Director General, Department of Justice and Attorney General [2021] QCAT 28, [54].

[79] Working with Children (Risk Management and Assessment) Act 2000 (Qld), s 221(1)(d).

[80] Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28, [84].

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

[82] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 361.

[83] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

[84] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3).

[85]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1).

Close

Editorial Notes

  • Published Case Name:

    JCW v Director General, Department of Justice and Attorney General

  • Shortened Case Name:

    JCW v Director General, Department of Justice and Attorney General

  • MNC:

    [2022] QCAT 66

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    28 Feb 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
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28
2 citations
Jump To
Cite 1 - (2008) WASCA 28
Cite 2 - (2008) WASCA 28
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
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
2 citations
Jump To
Cite 1 - (1979) 24 ALR 577
Cite 2 - (1979) 24 ALR 577
FGC v Commisisoner for Children and Young People and Child Guardian [2010] QCAT 350
2 citations
Jump To
Cite 1 - [2010] QCAT 350
Cite 2 - [2010] QCAT 350
HAM v Director General, Department of Justice and Attorney General [2021] QCAT 28
2 citations
Jump To
Cite 1 - [2021] QCAT 28
Cite 2 - [2021] QCAT 28
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
Lewis v Norman (1982) 2 NSWLR 649
2 citations
Jump To
Cite 1 - (1982) 2 NSWLR 649
Cite 2 - (1982) 2 NSWLR 649
Perry and Browns Patents (1930) 48 RPC 200
3 citations
Jump To
Cite 1 - (1930) 48 RPC 200
Cite 2 - (1930) 48 RPC 200
Cite 3 - (1930) 48 RPC 200
R v Kairouz [2017] QSC 270
2 citations
Jump To
Cite 1 - [2017] QSC 270
Cite 2 - [2017] QSC 270
Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] 1 VR 1
4 citations
Jump To
Cite 1 - [1983] 1 VR 1
Cite 2 - [1983] 1 VR 1
Cite 3 - [1983] 1 VR 1
Cite 4 - [1983] 1 VR 1
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
SBL v Director General, Department of Justice and Attorney General [2020] QCAT 405
2 citations
Jump To
Cite 1 - [2020] QCAT 405
Cite 2 - [2020] QCAT 405

Cases Citing

Case NameFull CitationFrequency
DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 1272 citations
NTT v Director-General, Department of Justice and Attorney-General [2023] QCAT 1204 citations
1

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