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- NTT v Director-General, Department of Justice and Attorney-General[2023] QCAT 120
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NTT v Director-General, Department of Justice and Attorney-General[2023] QCAT 120
NTT v Director-General, Department of Justice and Attorney-General[2023] QCAT 120
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | NTT v Director-General, Department of Justice and Attorney-General [2023] QCAT 120 |
PARTIES: | NTT (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) |
APPLICATION NO/S: | CML343-20 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 29 March 2023 |
HEARING DATE: | 19 May 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Cooper |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by Respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card-where issue of negative notice – Application for review – traffic history – criminal history were not categorised as serious offences nor disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an “exceptional case” warranting departure from the general rule that a working with clearance must be issued – were Department found that allegations of emotional and physical harm and breach of standards of care by foster carer were substantiated application of factors in s 221 s 226 s 228 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) Human Rights Act 2019 (Qld), s 8, s 13, s 25, s 26(2), s 36(2), s 48, s 58 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 16, s 221, s 226, s 228, s 353, s 354, s 360, Schedule 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18(1), s 19, s 20, s 21, s 24, s 28, s 66 Commission for Children and Young People Bill 2000 Explanatory Notes Child Protection Act 2009 (Qld), s 187 Police Powers and Responsibilities Act 2000 (Qld), s 7 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 Commissioner for Children and Young people and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Chief Executive Officer, Department of Child Protection v Grindrod (No 2) [2008] WASCA 28 Director-General Department of Justice and Attorney-General v PML [2021] QCATA 51 Director-General Department of Justice and Attorney-General v CMH [2021] QCATA 6 Drake v Minister of Immigration & Ethnic Affairs (1979) 24 ALR 577 DL v Director-General Department of Justice and Attorney-General [2021] QCAT 61 DEF v Director-General Department of Justice and Attorney-General [2022] QCAT 127 DVL v Director-General Department of Justice and Attorney-General [2022] QCAT 33 JCW v Director-General Department of Justice and Attorney-General [2022] QCAT 66 Murray v Director-General Department of Justice and Attorney-General [2018] QCAT 56 |
APPEARANCES & REPRESENTATION: | |
Applicant: | J.Mallory, Solicitor of Aboriginal & Torres Strait Island Legal Service (Qld) Ltd |
Respondent: | Ms J Capper |
REASONS FOR DECISION
Background
- [1]The Applicant was previously issued with a positive notice and blue cards were issued between 2006 and 2016. The Applicant submitted a renewal application seeking to be issued with a positive notice. The Applicant’s blue card expired prior to a decision being made. The Applicant subsequently made a fresh application for a blue card.
- [2]On receipt of the request the Respondent undertook a police check which subsequently showed that the Applicant had changes to her police information which raised concerns about the Applicant’s eligibility to continue to work with children and young people. These concerns related to charges for traffic offences committed by the Applicant.
- [3]A written request was made by the Respondent to the Department of Child Safety, Youth and Women in relation to the Applicant’s care of children. Child Safety responded on the 24 January 2019 and advised the Respondent pursuant to Section 187(3)(c)(1) that there was one significant incident which resulted in a young child in the Applicant’s care being hospitalised in 2017.[1]
- [4]The Police check showed traffic offences that occurred between January 1989 and June 2018. These offences could be categorised as follows:
8 Speeding offences and 1 failure to wear a seat belt between January 1989 and April 2005.
5 Speeding offences, 1 driving an unregistered vehicle, 2 stopping in a no stopping zone and 2 driving whilst using a held mobile telephone between September 2007 and July 2014.
3 Speeding offences and 1 driving whilst using a held mobile telephone between May 2017 and June 2018.[2]
- [5]The Respondent upon reviewing the information provided by the Department of Child Safety and the police traffic history advised the Applicant on the 21 February 2020 its intention to issue a negative notice.[3] Information was forwarded to allow the Applicant to make submissions as to why a negative notice should not be issued.
- [6]The Applicant’s solicitor made two submissions as to why a negative notice should not be made against the Applicant. The first was made on the 8 November 2018 prior to the Applicant’s blue card expiring.[4] The Applicant made a fresh application for a blue card on the 12 December 2019.[5] A second submission was made on the 3 March 2020[6] by the Applicant’s solicitor following the Respondents notice of intention to issue a negative notice. The Applicant made oral submissions on the 1 November 2018.[7]
- [7]The Respondent nevertheless issued the Applicant with a negative notice in accordance with the Act.[8]
- [8]The Applicant disputed this decision by filing an application to review the decision with the Tribunal on the 27 August 2020.[9]
- [9]The Applicant’s husband, who also had a blue card negative notice issued, filed an application for miscellaneous matters requesting to join the proceedings with this matter. The Applicant on the 7 April 2021 filed submissions adopting the Applicant husband’s application and submissions which were filed on the 15 March 2021.
- [10]The Respondent was directed by the Tribunal on the 24 March 2021 to file written submissions in response by the 21 April 2021.
- [11]The Applicant and Respondent were at the directions hearing on the 3 November2020 and given leave to apply for a Notice to Produce.
- [12]The Tribunal following an on papers hearing issued a Notice to Produce on Child Safety on the 20 May 2021.
- [13]A bundle of documents with names and addresses redacted that would identify any child or third party was produced to the Applicant and Respondent.[10]
The Tribunal’s Role
- [14]The Applicant has sought a review of the Respondent’s decision to issue a negative notice. In conducting this review, the Tribunal effectively “stands in the shoes” of the Respondent and is obliged to decide the application by way of a fresh hearing on the merits of the application,[11] and must in conducting that review apply the principle that the welfare and best interests of children is paramount.[12]
- [15]It is the role of the Tribunal not to determine based on the information before the Respondent at the time when the original decision was made but rather the material before the Tribunal at the time of the Review hearing.[13]
- [16]The review hearing must be by way of a fresh hearing based on the merits of the application.[14]
- [17]The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[15] In this regard the Tribunal can:
- (a)confirm or amend the Respondents decision; or
- (b)set aside the original decision and substitute its own decision; or
- (c)set aside the decision and return the matter for reconsideration to the decision-
- (d)
- (a)
Working with Children
- [18]The Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) establishes a scheme that requires the development and implementation of risk management strategies and the screening of people employed or carrying on a business which involves or interacts with children. The purpose of this scheme is to create a safe and supportive environment for children and young people when they are receiving services and participating in activities which are essential to their development and wellbeing.[17]
- [19]The objective of the legislation is to promote and protect the rights, interests, and wellbeing of children in Queensland.[18] Every child is entitled to be cared for in a way that protects them from harm and the welfare and best interests of children is paramount.[19] The focus in blue card matters is on the protection of children from future harm within places of employment.[20] It is not the intention of the legislation to punish someone twice if they have acquired a police or disciplinary record.[21]
- [20]The WWC Act refers in several sections of the act to the words “exceptional case” when the Chief Executive is determining to issue a negative notice to a blue card holder or applicant for a blue card.
What is meant by “exceptional case”
- [21]The term is not defined in the legislation and has been the subject of discussion in a number of cases over time in both review matters and the Tribunal’s Appeal jurisdiction.
- [22]What constitutes an” exceptional case” is a matter of fact and degree in the whole of the circumstances in each particular case and is a matter of discretion.[22]
- [23]
- [24]Section 226 of the WWC Act does provide guidance to what must be considered by the chief executive when deciding if an “exceptional case “exists in matters involving a conviction or charge. It is not an exhaustive list.
- [25]Section 226 deciding exceptional case if conviction or charge.
226(1) This section applies if the Chief Executive –
- (a)is deciding whether there is an exceptional case for the person; and
- (b)is aware that the person has been convicted of, or charged with, an offence.
Section 226(2) The Chief Executive must have regard for the following—
- (a)in relation to the commission, or alleged commission, of an offence by the person—
- (1)whether it is a conviction or a charge; and
- (2)whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
- (3)when the offence was committed or is alleged to have been committed; and
- (4)the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
- (5)in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision.
- [26]The criminal history put to the Tribunal by the Respondent to be considered pursuant to s 226 is the Applicant’s traffic history.[25] This has involved 24 infringement notices over a 29-year period. These infringement notices resulted in monetary fines and a loss of demerit points from the Applicant’s driver’s licence.
- [27]The Applicant has submitted that the cases of CMH[26] and JCW[27] and DVL[28] are the relevant cases to consider as to why these offences should not be regarded as charges. The Respondent has referred the Tribunal to the cases of DL[29] and DEF as to why they should be.[30] In the case of DL[31] there is reference to s 71(5) of the Police Powers and Responsibility Act 2000 (Qld).
- [28]
If a person is served with an infringement notice the person is deemed to be charged with having committed the offence when the infringement notice is served on the person. Section’s 13 and 14 of the State Penalties Enforcement Act 1999 address the various methods of service of infringement notices.
- [29]It is agreed by both Applicant and Respondent that there have been no convictions and that statutory fines only were imposed for the traffic infringements.
- [30]
- [31]I do not conclude that the traffic infringement offences are serious offences as described in Section 15 and Schedule 2 and 3 nor do I consider any of the offences, to be disqualifying offences as described in Section 16 and Schedule 4 and 5.[34]
- [32]The decision of CMH[35] at paragraphs 27 and28 referred to charges that were not disqualifying charges that had been dismissed. The Tribunal looked to Section 221(1)(b)(3) and Section 221(1)(b)(4) prior to amendment and the definition of “dealt with” as defined in Schedule 7 of the WWC Act. There the Tribunal restricted the definition of “charges” to “extant charges”. In CMH[36] the Tribunal considered charges that were not disqualifying charges that had been dismissed and determined that they were not extant charges for the purpose of the WWC Act. In this matter the Applicant could have determined to have her day in Court and take the consequences of that decision. The result of any appearance in Court for any of the infringement notices could have been:
- (a)the charges proven and the Applicant found guilty with or without a conviction recorded.
- (b)the Applicant found not guilty and the charges dismissed.
- (c)the police offering no evidence and the charges dismissed.
- (a)
- [33]Here the Applicant paid the fine as recorded on the infringement notice and accepted the reduction of points on her driver’s licence. I consider this to be an admission of service of the documents[37] and of her guilt.
- [34]The Respondent has put in its submissions that CMH[38] is out of step with other established law. The Respondent has referred to the cases of Murray and Lister. In Murray[39] at [41] the Tribunal held that despite the Applicant being acquitted of a charge for a non-disqualifying offence in 2008,” the particulars of the alleged offence still needed to be considered in the specific context of the risk to children” and in Lister[40] Ms Lister had 3 convictions and many other non-disqualifying offences. The Director of Public Prosecutions in that case had decided not to proceed with charges or had proceeded and Ms lister was acquitted. The Appeal Tribunal went on to consider the material relating to the charges for non-disqualifying offences and considered that “the totality of the allegations made against Ms Lister indicate a risk to the safety of children in her care.”
- [35]In the decision of JCW,[41] the Member addressed JCW’s traffic history and concluded that it did not form part of JCW’s criminal history. In doing so the Member addressed police information within WWC Act, the Police Powers and Responsibilities Act 2000 (Qld), and the Justices Act 1886 (Qld). The Member did not address Section 71(5) of the Police Powers and Responsibilities Act 2000 (Qld).
- [36]
- [37]Further submissions were made by the Respondent in relation to the Explanatory Notes of 2004 which referenced legislative changes made in 2005” Excluding offences” and in 2008 “Disqualifying offences “as opposed to the Explanatory Notes of 2000 which formed part of the decision of CMH.[45] The Respondent would have me conclude that the legislative intent of section 221(1)(b)(3)[46] was for it to serve as an express limitation and as such the infringement notices were to be considered. In considering the offences as charges the Chief Executive must determine whether it is an exceptional case to decide pursuant to s 221(2).[47]
- [38]The applicant was briefly cross examined by the respondent during the hearing in relation to the driving infringements involving the use of a mobile phone. The Applicant admitted to the offences but denied putting the children in her care in danger. When asked by the Respondent “is it possible that there were children in the car at the time of committing the offences?”, the Applicant answered “no”.[48] When asked further questions regarding these charges the Applicant stated that she did not normally take the children in the car, but then corrected that answer to state that she did drive the children and if the phone did ring then the children would grab the phone and answer it. The applicant further stated that her strategy now was to putt the mobile phone on the floor on the passenger side of the car so she could not answer it whilst driving.
- [39]Whilst not questioned about speeding offences it is disturbing to note that there were 10 occasions when the applicant exceeded the speed limit by more than 13 kmph and the last occasion in June 2018.
- [40]The Applicant here did not contest the traffic infringement notices and paid the fines. This contrasts with the case of CMH[49] where the charges were dismissed. I therefore do not feel bound to follow that decision. In the case of JCW[50] the Member there failed to take consideration of the provisions of Section 71(5). I do not adopt the case of JCW.[51] I adopt the decision of DL[52] and DEF,[53] and follow the provision of Section 71(5) of the Police Power and Responsibilities Act 2000 (Qld) and consider the infringement notices to be charges once served. I consider service was completed when the Applicant received the notices which she must have in order to pay the fines. I consider that the infringement notices are charges as defined in the WWC Act – “a charge in any form”.
- [41]I note the Respondents and Applicant’s submission that I should consider the amendments of Section 221 of the Working with Children Act commencing 20 May 2022. These amendments came into effect after this review commenced but before my decision.[54] I consider that this is the correct approach.
221 Deciding application—no relevant information or conviction etc for non-serious offence
- (1)The chief executive must issue a working with children clearance to the person if the Chief executive—
- (a)is not aware of any relevant information about the person; or
- (b)is not required to issue a negative notice to the person under subsection (2).
- (2)The chief executive must issue a negative notice to the person if the chief executive –
- (a)is aware of relevant information about the person; and
- (b)is satisfied it is an exceptional case in which it would not be in the interests of children for the chief executive to issue a working with children clearance to the person.
- (3)For subsections (1) and (2), the following information about the person is relevant
Information—
- (a)information that the person has—
- (1)a charge for an offence other than a disqualifying offence; or
- (2)a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note—for charges for disqualifying offences that have not been dealt with, see chapter 7, part 4, division4 and sections 199, 295(1) and 296
- (1)a conviction for an offence other than a serious offence;
- (a)investigative information;
- (b)domestic violence information;
- (c)disciplinary information;
- (f)other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person.
- [42]
- [43]Whilst the totality of the offences committed over a significant time is not too unusual, it is the usage of a handheld phone 3 times and 10 speeding offences of exceeding the speed limit by more than 13 kmph which may have involved children in the car. The Applicant is a paid foster carer and can be considered as employed or carrying on a business that does involve children. It is the purpose of the WWC Act to ensure that the children are in a supportive and safe environment when in the Applicant’s care. On hearing the Applicant’s evidence, I am not swayed that children were not in the car when some of these offences occurred. I consider that excessive speed and driving whilst holding a handheld telephone is not safe and any children in the car at the time would have been in potential danger. I find that it is appropriate to consider this matter as an exceptional case
- [44]In addition to the traffic infringements Blue Card Services have concerns with other matters that have come to its attention from The Department of Child Safety, Youth and Women.
Other Matters put by Blue Card Services to be Considered
- [45]The Respondent sought and obtained a Notice to Produce from the Tribunal following receipt of other information which was released by Child Safety in accordance with Section 187(3)(c)(1)(47) following a letter of request.[57]
- [46]The application for miscellaneous matters by the Respondent requesting a Notice to Produce and an application for miscellaneous matters to join the application for review by the Applicant and the other application for review by the Applicant’s Husband was determined at the same time
- [47]At that time the Applicant opposed the Notice to Produce. The Respondent has stated in its material that the request to produce was prompted by complaint material that it had before it at that time.
- [48]The Applicant has submitted that there have been breaches of the Human Rights Act Sections 25, 26 and 31.[58] In particular the breaches concerning information obtained from Child Safety in accordance with Section 187(3)(c)(1)[59] and pursuant to the Notice to Produce which the Applicant contends should not be regarded as other relevant information.
- [49]This Review is a review of the refusal to grant the Applicant a Blue Card and as such all the material before the Tribunal at the time of the Review is to be considered. The Applicant is intending for this Tribunal to Review the decision of a differently constituted Tribunal which heard the Respondent’s application for a miscellaneous matter (Notice to Produce) and the submissions of the Applicant opposing that Notice to Produce. That is outside the confines of this review and should have been the subject of a separate application to review the decision of the previously constituted Tribunal which granted the Notice to Produce.
- [50]I do not propose to consider arguments put by both Applicant and Respondent pertaining to the approval of the Notice to Produce or breaches of the Human Rights Act[60] as it relates to the information provided by Child Safety.
- [51]I consider all material provided in these proceedings is to be considered.
- [52]
the approach that the learned Member ought to have taken was to apply an independent mind and deliberation to the concerns raised, irrespective of the Department’s findings that the concerns about the Applicant’s care of the children were substantiated or otherwise.
A failure to take into account some material consideration is an error of law.[62]
- [53]The Applicant in submissions noted that all the Notice to Produce material originated from Child Safety, and that little of the material was of use for the purpose of the Tribunal’s decision, and that it was unreliable and repetitive and that no person who drafted material presented for cross-examination. This it was submitted was a breach of procedural fairness as these were untested allegations.
- [54]The Respondent in its submissions noted that whilst the inability of the Applicant to cross-examine the multitude of authors may impact the weight the Tribunal can afford to the evidence proffered, this does not amount to a denial of procedural fairness.
- [55]Untested allegations are relevant and may bear on the question of whether there is an exceptional case. In Lister (No 2)[63] the Appeal Tribunal held:
[The] fact that authors of the statements have not been cross-examined will affect what weight should be placed on them but does not render them irrelevant. Even untested allegations made in sworn statements to police bear on the question whether this is an exceptional case.
- [56]In accordance with this it is important that I apply an independent mind and deliberation to the concerns raised, irrespective of Child Safety finding that their concerns about the Applicant’s care of the children were substantiated or allowed.[64]
- [57]The Applicant provided two affidavits to the Tribunal and made herself available for cross-examination.
- [58]The Applicant was cross-examined on no less than 42 pages of the documents produced by Child Safety pursuant to the Notice to produce.
- [59]It was noted that the Applicant was for the most part open in her responses to questions. On a number of occasions, however the answer given was different to the information contained in notes taken by Child Safety staff as presented to me. On other occasions the Applicant did not recall what was said to have occurred, or did not agree with what was said, or that the incident did not occur. On one occasion the notes from Child Safety staff, allege that the Applicant was on occasions threatening to staff and made derogatory statements about staff and some of the foster children. The Applicant when this allegation was put to her denied it.
- [60]There were two significant incidents on which the Applicant was cross-examined. The first of these involved a young person who was recently placed with the Applicant and who was given permission to visit “Family” and attend an All-Blacks Football game. That young person was dropped off at an address that the Applicant could not recall and could not remember the name of the person at that address. The young person was to ring at 10.30pm to be picked up. The Applicant said she went to sleep and was contacted by the Hospital early next morning 5.30 am. That young person had been taken to the Hospital after being found unconscious in the street and in an intoxicated state. Child Safety was not contacted as the Applicant believed that the Hospital would have done so.
- [61]The Applicant in cross-examination did not appear to understand the gravity of the incident and her responsibility to ensure the safety of the young person and foresee possible danger and what steps could have been taken to minimise such danger. The Applicant stated that she wished to give the child some freedom to associate with “Family”. Freedom should not be at the expense of the child’s safety. The Applicant’s response to what had occurred was “if she had of been awake at the designated time and not contacted, she would have got in the car and looked for her, and if not located ring her carer organisation and Child Safety and leave a message. The Applicant then said she can’t be awake 24/7. The Applicant did not agree with the Child Safety findings and appeared to endeavour to deflect blame by stating that this child was in an unstable mental state and had depression.
- [62]The second incident involved 2 young persons who had been given permission to go to a fast-food outlet with an understanding that they had to return by a set time. When that time came, and they had not returned the Applicant indicated that she went to look for them and saw them walking along the street returning home. The child who had passed out had self-placed with the Applicant. The Applicant stated that she had spoken to Child Safety for approval. The Applicant said that the children were in and out of the bedroom and that she was watching tv and her husband had gone to bed. Sometime later the Applicant’s attention was drawn to one of the young person’s ringing 000 and advising her that the other person had passed out. That person went into cardiac arrest. That person had been chroming in the bedroom. The Applicant’s husband commenced CPR and the person survived. The Applicant was cross examined at length regarding this incident. The Applicant stated that she did not see any spray cans and believed the children purchased them from the shop. The Applicant further stated that she does not have any spray cans in the house. The Applicant was asked about her being advised earlier about chroming. The Applicant stated that she did not believe it had occurred as she was allergic to spray and would have reacted. The Applicant further stated that she did not call anyone regarding the notification as she thought it was “bullshit” as she was allergic and would have reacted.
- [63]The Applicant did not accept the Child Safety report which indicated “grave concerns” following the incident NTP319. The Applicant resigned as a foster carer after this incident and refused to engage with Child Safety to discuss the matter. The Child Safety report into this incident was incomplete because of the lack of engagement by the Applicant. The Applicant during cross-examination said that she did recall receiving any letters from Child Safety regarding an investigation into this matter. The Child Safety Report does indicate a letter was sent and that the Applicant was approached by telephone.[65]
- [64]It would appear the impression that the Applicant wanted to portray as documented in Child Safety documents and in the Cross-examination of the Applicant at the hearing was that she and her husband had done everything to save the child, yet they were the victim and were being made out to be poor carers. There did not appear to be any consideration as to what went wrong. The Applicant appeared to put all the blame with the two young people who had done the wrong thing.
- [65]The Applicant provided statements from two other persons, the Applicant’s husband who was also a foster carer and blue card holder and an adult who was a previous foster child. Both persons made themselves available for cross-examination.
- [66]The adult foster child relied on her witness statement and was briefly cross-examined. This person stated that she was placed in care as a 6-year-old in about 2002. She was aware that the Applicant had lost her entitlement to a blue card and that it related to an incident in 2018. Under questioning by the Respondent, she stated that she was not aware of any issues, that there were no dangerous situations or neglect. The witness’ care finished in 2014.
- [67]The Applicant’s husband relied on his witness statement and too was briefly crossexamined in relation to the two major incidents. The first incident involved a child who became intoxicated and taken to Hospital after being allowed to visit “Family” and attend an All-Blacks football game. The witness stated that it never occurred to him to advise Child Safety of the incident as he believed that the Hospital would have done so. The witness described the child as defiant and rebellious.
- [68]The second incident involved two young people in care one of whom went into cardiac arrest following chroming in the Applicant’s residence. The witness said he commenced CPR and the young person survived. The witness was not subjected to intense questioning regarding either incident. The witness further stated that he was unaware of the allegation that the Applicant had been told of the chroming before the incident.
- [69]There were several other incidents and allegations concerning the Applicant which were the subject of reports and file notes compiled by several different staff over a period of time. These reports when viewed with these two major incidents indicate that it is proper to consider if this is an “exceptional case”.
- [70]In this matter Section 221 (3) (f) is relevant as there is other information which the chief executive is aware of, which has been obtained by way of the notice to produce. This other information about the Applicant must be “information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person.”
- [71]Section 228 of the WWC Act provides additional guidance for assessing an exceptional case if disciplinary information or other relevant information exists. It has been put to me by the Applicant’s solicitor the wording in the subsections only refers to other information and only refers to relevant information in the heading to the section. I find that the information contained in the documents produced by Child Safety is other information that is relevant in deciding if it is in the best interests of children when deciding to issue a working with children clearance to the person.[66]
Rules of Evidence-onus of proof
- [72]In review hearings for blue card the responsibility lies with the Tribunal after it has evaluated all the available evidence to determine if an exceptional case exists.[67] The onus does not lie on either Applicant or Respondent.
- [73]The Tribunal is not bound by the rules of evidence, or any practice or procedures applying to courts of record.[68] It may inform itself in any way it considers appropriate,[69] and may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.[70] However, in doing all of that, the Tribunal must observe the rules of natural justice.[71]
- [74]In administrative matters natural justice and procedural fairness are to be followed by the tribunal.
- [75]In considering the rules of evidence which the Tribunal is not bound by the Tribunal nevertheless must act according to substantial justice and the merits of the case.[72]
- [76]The question for the Tribunal is to determine what weight should be placed on the notice to produce documents provided to the Tribunal to which the Applicant was not afforded the opportunity to cross-examine the writers of the material. In Maher & Anor[73] the Court observed the Briginshaw test[74] and said that the tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[75]
Respondent’s reason for the decision
- [77]The Respondent in issuing a negative notice to the application to renew a blue card took into consideration the requirements of the WWC Act. The Respondent further considered whether the matter was an exceptional case. In doing so the Respondent took into consideration the Applicant’s criminal history which consisted of some 28 infringement notices that had been issued between 1989 and 2018 and information that had been received from Child Safety.
- [78]The Respondent says that Section 226 of the WWC Act applies and that the infringement notices issued against the Applicant are charges and are indicative of the Applicant not being a good role model for children in her care. The Applicant’s lack of respect for road rules is not what is expected of blue card holders and that there is an expectation that blue card holders will conduct themselves in a law-abiding manner. It raises concerns of the Applicant’s ability to exercise good judgement. Apart from 4 suspensions for non-payment of fines through SPER there were 24 other traffic infringements over a period from January 1989 to June 2018. The more serious of these were 3 Driving whilst using a handheld Mobile phone in 2012, 2013 and 2018, 10 speeding offences for exceeding the speed limit by at least 13 km per hour. The last 3 of which were in 2014, 2017 and June 2018. There were 2 other speeding offences for exceeding the speed limit by less than 13 km per hour.
- [79]The Respondent has also concluded that Section 221 of the WWC Act is relevant in these proceedings because of the traffic infringements and other information that the Respondent became aware of from Child Safety. The Respondent has referred to the quantity of information that has come to hand following the notice to produce. The Respondent in the hearing of this review has directed me to two significant incidents. The Applicant was cross-examined on both incidents.
- [80]The first incident involved a young 15-year-old girl who was found unconscious on a road and intoxicated and who had to be hospitalised. This resulted in Child Safety forming a view that appropriate standards were not met, and that the Applicant and her husband inadequately supervised the young person who it was alleged they knew had higher behavioural and emotional needs and needed more intensive monitoring and supervision. The inadequate supervision resulted in that young person being harmed by taking part in risk taking behaviour with unknown people.[76]
- [81]In the oral submission of the Applicant another incident involving two young people chroming at the Applicant’s house was brought to the attention of the Respondent. The Applicant stated that one person had a cardiac arrest and had to be revived by the Applicant’s husband performing CPR. The Applicant also stated that both children had self- placed with her prior to the event and Child Safety was aware of this.[77] No information concerning this event was available to Child Safety at the time of the review of the application for renewal of the Applicant’s blue card or the application for a blue card.
- [82]The Respondent also highlighted some other matters which were recorded by Child Safety employees. Some of that material was put to the Applicant. Some of what was put was denied, some the Applicant was unable to recall and some simply did not happen. Examples of some of these incidents as put to the Applicant are as follows:
NTP 195 incident which was listened to by a Child Safety Officer in which Applicant was derogatory of Child Safety Officers and the child that made the complaint about her. Applicant’s response when put to her at the hearing was that it did not happen, it was the first time she had heard of it.
NTP 162 Denied posting photographs on Facebook. In Cross-examination the Applicant stated that she did not recall an interview in relation to that incident and then later denied the information referred to in the interview as recorded by the child safety officer. The Applicant said that she had supported a friends post who had lost her foster children. When asked further about this incident the Applicant felt that the Child Safety breach was wrong.
NTP 89 Issues regarding drawing of a penis by a young child, allegations of sexual assault of the child. The Applicant in Cross-examination stated that what was recorded by the child safety officer was not correct and that the child had not disclosed to her that she had been sexually assaulted and disagreed with Child Safety findings.
NTP 31 An incident of two children having sex at the side of the house which was brought to the Applicant’s attention by the neighbour. It was not denied that an incident did occur, and the Applicant stated that she had the child taken to the hospital. The Applicant said she was not advised that she had done anything wrong by Child Safety.
NTP 47 Incident of allowing other persons in the home including a parent. This was denied and the Applicant stated that she had no idea what was being referred to. That she was very cautious. The Applicant did agree that she had allowed previous foster children in the home but after Child safety found out they left. The Applicant stated she always ensured people had Blue Cards.
- [83]The Respondent also referred to the Applicant telling Child Safety when interviewed by Child Safety concerning the incident involving the young person who had been hospitalised following heavy drinking that she was very depressed at that time. During cross-examination by the Respondent the Applicant by way of explanation said that she was “worn out by allegations”.
- [84]The Respondent did make substantial submissions regarding the information obtained by the notice to produce. The relevance of that information in the context of Section 228(2) of the Working with Children Act in determining whether an exceptional case exists. The material on which the Respondent relied is set out in the Respondent’s submissions in paragraphs 107 to 111. In addition, Paragraphs 122 to 146 of those submission discusses material, which was disclosed in the notice to produce, and which was referred to in cross-examination of the Applicant.
Applicant’s submissions
- [85]The initial written submissions of the Applicant’s solicitor to Blue Card following notice to review the Applicant’s eligibility to hold a blue card in the main evolved around the legal arguments relating to the Applicant’s traffic history and whether the infringement notices were charges and formed part of the Applicant’s criminal history. That the information received from the Queensland Police Service was not police information within the definitions of the Child Safety Act (BCS-4) (BCS-30 to 33)
- [86]The Applicant did not provide any written submissions regarding complaint information from Child Safety. (BCS-30). The Applicant did provide oral submissions which were recorded by Child Safety. (BCS-21)
- [87]The Applicant’s solicitor provided written submissions on the Applicant’s behalf at the conclusion of the hearing. The Applicant provided two affidavits from herself together with supporting affidavits from her husband and a former foster child all of whom made themselves available for cross-examination. Most of the information contained in the Applicant’s affidavit of 31 January 2022 related to the Applicant’s life history, the non-acceptance of a criminal history and the two serious incidents involving children under the Applicant’s care. The hospitalisation of a child found unconscious on the road and a child who went into cardiac arrest from chroming. The second affidavit of the 29 April 2022 addressed people in the house, drawings of a penis, photographs on Facebook, sexual conduct at the side if the house and matters of the 3 March of which the Applicant was not cross examined.
- [88]Later written submissions by the Applicant’s solicitor addressed whether the Applicant had a criminal history by way of the infringement notices, whether the Applicant should be assessed under Sections 226 and 221 and the determination of an exceptional case pursuant to Section 228 of the WWC Act. The Applicant’s solicitor has put that the Respondent has referred to the information obtained from Child Safety as other relevant information and that whilst the heading to Section 228 of the WWC Act does state other relevant information whereas the subsections only refer to other information. Section 221(3) of the WWC Act provides for (a) domestic violence information, (b) disciplinary information; and (c) other information. The Applicant’s solicitor contends that there is no other information that should be considered, and that the information provided is a breach of the Human Rights Act.[78]
- [89]The Applicant’s solicitor did address the matters on which the Applicant was cross examined, and the Applicant’s replies to questions and also referenced the Respondent’s submissions relating to Child Safety information provided in the notice to produce. Paragraphs 47 to 60 of the reply.
- [90]The Applicant’s submission was that the Tribunal should confirm that the information obtained pursuant to the Notice to Produce is insufficient to arrive at a decision that this is an exceptional case and that the Applicant’s application for a blue card should not be refused.
- [91]The Respondent on the other hand has submitted that the information provided by Child Safety pursuant to the notice to produce is sufficient to conclude that it is proper to determine that this matter is an exceptional case when the totality of all the information is considered.
- [92]I have had submissions from the Applicant and Respondent regarding the information provided by Child Safety. After viewing all the information provided by Child Safety and after due consideration of all that information, I consider that some of the information should be given less evidentiary weight than other information contained in the documents provided. I consider that more weight should be placed on the information on which the Applicant was cross examined including the two more serious incidents which resulted in children being hospitalised.
Conclusion
- [93]I have considered the written submissions from the Applicant and Respondent and the Respondent’s reply, the Oral evidence of the Applicant and the Applicant’s witnesses who presented to the Tribunal hearing. The legal argument concerning whether traffic infringement notices are charges and form part of a person’s criminal history was included in those submissions. For reasons stated elsewhere in this decision I conclude that those traffic infringements are charges and do form part of the Applicant’s criminal history. Legal argument was presented to the Tribunal requesting that the information obtained from Child Safety should not be considered as its release was not allowed under the Child Protection Act 1999 (Qld) or WWC Act. In reviewing the Applicant’s submission concerning the issuance of the notice to produce on Child Safety by another Member at a separate hearing I conclude that I have no authority to review that decision. A review of that decision would require a separate application to QCAT. I therefore find that all the information from Child Safety should be included in the review.
- [94]Consideration of the traffic infringement charges, and information received from Child Safety and the provisions of Section 221 and those of Section 228 and that of Section 226 have been considered by me in deciding as to whether this is an exceptional case. The irresponsible driving of the Applicant by exceeding the speed limit by greater than 13 kmph. and the use of a handheld mobile phone, together with the two significant incidents involving children being hospitalised which was not disputed and on which the Applicant was cross-examined indicates to me that the Applicant did not create a safe and supportive environment for the children and young people in her care. I give less weight to the additional information on which the Applicant was cross examined, and other information contained in Child Safety documents. Nevertheless, they do reinforce my finding that this is an exceptional case. Those two serious incidents and the irresponsible driving could have resulted in more serious consequences for the Applicant and the children in her care. As stated elsewhere granting the children freedom should not outweigh safety of those children in the Applicant’s care.
- [95]I understand what a difficult job it must be to be a foster carer. As attested to by the Applicant and the Applicant’s husband and as submitted by the Applicant’s solicitor I understand that the Applicant had been a capable carer for many years and has cared for more than 100 children in that time. It is however not my role to determine if the Applicant is suitable to continue as a foster carer. My role is to determine whether it would be in the best interests of children for a positive notice for a Blue Card to issue. I conclude that the Applicant’s traffic history and the Child Safety matters referenced at this hearing alone make this an exceptional case and that it would not be in the best interests of children for a positive notice and blue card to be issued to the Applicant.
- [96]I have considered the submissions of the Applicant’s solicitor concerning breaches of the Applicant’s human rights as contained in the Human Rights Act[79] I am satisfied that any limitation on the Applicant’s human rights is justified because it has the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people.
- [97]I confirm the decision under review.
Non-publication order
- [98]Given that the allegations involve foster children who were in the care of the Applicant, I order that the publication of her name, as well as the names of complainants all witnesses in the proceeding, be prohibited other than to the parties to the proceeding pursuant to Section 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- [99]I also order pursuant to Section 66(1)(a) of the QCAT Act, that the publication of documents filed by the parties in this proceeding is prohibited save as was necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these reasons.
Footnotes
[1] BCS-18 to 19.
[2] BCS-2.
[3] BCS-22.
[4] BCS-30 to 33.
[5] BCS-11 to 12.
[6] BCS-34 to 35.
[7] BCS-21.
[8] BCS-36 to 37; Working with Children (Risk Management and Screening) Act 2000 s. 353.
[9] AP001; Ibid s. 354.
[10] NTP 1 to 373.
[11] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).
[12] Working with Children (Risk Management and Screening) Act 2000, s 360.
[13] Drake v Minister of Immigration & Ethnic Affairs (1979) 24 ALR 577 at [579]; DM v Director-General Department of Justice and Attorney-General [2022] QCAT 199.
[14] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2); Chief Executive Officer
Department of Child Protection v Grindrod (No2) (2008) WASCA 28 at 84.
[15] Ibid.
[16] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24 (1).
[17] Working with Children (Risk Management and Screening and other Legislation Amendment Bill 2018, Explanatory Notes.
[18] Ibid s 5.
[19] Ibid s 6.
[20] Commissioner for Children and Young People Bill, second reading speech, Queensland Parliament Hansard 14/11/2000 at p. 4391.
[21] Ibid.
[22] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at 34 per Phillippides J endorsing the approach of Fullagar J in Re Imperial Chemical Industries Ltd’s Patient Extension Petitions [1983] 1VLR 1 in adopting the warning of Luxmore J in Perry and Browns Patients (1930) 48 RPC 200
[23] Ibid.
[24] Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[25] BCS-2.
[26] Director-General Department of Justice and Attorney-General V CMH [2021] QCATA 6.
[27] JCW v Director-General Department of Justice and Attorney-General [2022] QCAT 66.
[28] DVL v Director-General Department of Justice and Attorney-General [2022] QCAT 33 at [43]-[69].
[29] DL v Director-General Department of Justice and Attorney-General [2021] QCAT 61.
[30] DEF v Director-General Department of Justice and Attorney- General [2022] QCAT 127.
[31] [2021] QCAT 61.
[32] Police Powers and Responsibility Act 2000 (Qld).
[33] [2021] QCATA 6.
[34] WWC Act.
[35] Ibid.
[36] Ibid.
[37] State Penalties Enforcement Act 1999 (QLD). s 13, s 14.
[38] Ibid.
[39] Murray v Director-General Department of Justice and Attorney-General [2018] QCAT 56.
[40] Commissioner for Children and Young People and Child Guardian v Lister (No2) [2011] QCATA 87 [31] to [33].
[41] JCW v Director-General Department of Justice and Attorney-General [2018] QCAT 56.
[42] DL v Director-General Department of Justice and Attorney-General [2022] QCAT 66.
[43] Schedule 7.
[44] Ibid.
[45] Director-General Department of Justice and Attorney-General v CMH [2021] QCATA 6.
[46] Working with Children (Risk Management and Screening) Act 2000 (Qld).
[47] Ibid.
[48] BCS-2.
[49] [2021] QCATA 6.
[50] [2022] QCAT 66.
[51] Ibid.
[52] [2021] QCAT 61.
[53] [2022] QCAT 127.
[54] Respondents submission submissions dated 21 June 2022 [21], Applicant’s submission dated 18 July 2022 [1].
[55] Ibid.
[56] Working with Children (Risk Management and Screening) Act 2000 (Qld). Schedule 7.
[57] Child Protection Act 1999 (Qld).
[58] Human Rights Act 2019 (Qld).
[59] Child Protection Act 1999 (Qld).
[60] Human Rights Act 2019 (Qld).
[61] Director-General Department of Health and Attorney-General v PML [2021] QCATA 51.
[62] Ibid.
[63] Commissioner for Children and Young People and Child Guardian V Lister (No 2) [2011] QCATA 87 [31]-[33].
[64] Director-General Department of Justice and Attorney-General v PML [2021] QCATA 51.
[65] NTP 311-315.
[66] Working with Children (Risk Management and Screening) Act 2000 (Qld). s 228(1)(b)(2).
[67] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 at [19].
[68] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).
[69] Ibid, s 28(3)(c).
[70] Ibid, s 28(4).
[71] Ibid, s 28(3)(a).
[72] Briginshaw v Briginshaw (1938) 60 CLR 336.
[73] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at 30.
[74] (1938) 60 CLR 336.
[75] (2004) QCA 492 at [28].
[76] NTP-279.
[77] NTP-303.
[78] Human Rights Act 2019.
[79] Human Rights Act 2019 (Qld).