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  4. Jodie Helen Loy v Director-General, Department of Justice and Attorney-General - [2023] QCAT 233

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Jodie Helen Loy v Director-General, Department of Justice and Attorney-General[2023] QCAT 233

Jodie Helen Loy v Director-General, Department of Justice and Attorney-General[2023] QCAT 233

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jodie Helen Loy v Director-General, Department of Justice and Attorney-General [2023] QCAT 233

PARTIES:

Jodie Helen Loy

(applicant)

v

Director-General, Department of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

CML443-20

MATTER TYPE:

Children’s matters

DELIVERED ON:

3 May 2023

HEARING DATE:

23 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Burson

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is exceptional within the meaning of s221 of the Working with Children (Risk Management and Screening) Act 2000 (QLD) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – BLUE CARD – application to review a negative notice – whether sufficient time since offending – whether this is an exceptional case in which it would not be in the best interests of children for the applicant to be given a working with children clearance

Mental Health (Forensic Provisions) Act 1990 (NSW)

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

Chief Executive Officer, Department of Child Protection v Grinrod (No 2) (2008) WASCA 28

Re FAA [2006] QCAT 15

Jodie Helen Loy v Director-General Department of Justice and Attorney-General [2018] QCAT 381.

REASONS FOR DECISION

Background

  1. [1]
    This is an application for a review of a decision by the Director General, Department of Justice and Attorney General made on 16 October 2020 to refuse to cancel a negative notice issued to the Applicant on 19 December 2017.
  2. [2]
    The Applicant is a qualified social worker.  At the time of hearing the Applicant was not working within this profession.
  3. [3]
    The Applicant applied for a review of the decision under the Working with Children (Risk Management and Screening) Act 2000 (‘WWC Act’) to refuse to cancel a negative notice on 28 October 2020.

The ‘Blue Card’ legislative framework

  1. [4]
    Employment screening for child-related employment is dealt with in chapter 8 of the Act. The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.
  2. [5]
    A child-related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
  3. [6]
    As applicable to this case, the Act requires that a Blue Card must be issued unless the Chief Executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[4]

What is meant by ‘exceptional case’?

  1. [7]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
  2. [8]
    Section 226(2) of the Act sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]
    1. (a)
      Whether it is a conviction or charge;
    2. (b)
      Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
    3. (c)
      When the offence was committed;
    4. (d)
      The nature of the offence and its relevance to employment that may involve children; and
    5. (e)
      In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
  3. [9]
    Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
  4. [10]
    The application of the Act is intended to put boundaries around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]

Evidence relied upon by the Respondent

  1. [11]
    The evidence from the Respondent is summarised as follows:
    1. (a)
      Ms Loy has a number of finalised criminal charges.  The latest offending dating from February 2017.  These are outlined as follows:
      1. (i)
        Assault Occasioning Bodily Harm –March 2000.
      2. (ii)
        Disturbance in Premises to which a licence or permit relates and refused entry to licensed premises – June 2013
      3. (iii)
        Drunk and Disorderly in premises to which a permit/licence relates – November 2013
      4. (iv)
        Obscene Publications and exhibitions – November 2013
      5. (v)
        Assault Occasioning Bodily Harm and Wilful Damage – February 2017
    2. (b)
      The nature of the charges have previously been published and we do not repeat the substance of the charges here, but confirm that the Tribunal has carefully considered these charges.
    3. (c)
      The Respondent relies on the previous decision of this Tribunal to confirm the decision of Blue Card Services.[9]
    4. (d)
      The Respondent also relies on:
      1. (i)
        transcripts of sentencing remarks;
      2. (ii)
        police reports of the offending behaviour of the Applicant;
      3. (iii)
        material produced by Queensland Corrective Services;
      4. (iv)
        material produced by the Queensland Police Service.
  2. [12]
    The Respondent also provided oral and written submissions to this Tribunal.

The Applicant’s evidence and submissions 

  1. [13]
    The Applicant provided the Tribunal with comprehensive material, including the following:
    1. (a)
      a life story (undated)
    2. (b)
      thirteen supportive statements by friends and colleagues; and
    3. (c)
      one health report by a medical practitioner.
  2. [14]
    The Applicant gave evidence at the hearing and was cross-examined by the representative of Blue Card Services.
  3. [15]
    The Applicant also produced a number of witnesses at hearing and these witnesses were cross-examined.
  4. [16]
    The Applicant’s counsellor provided evidence of the Applicant's insight and engagement with counselling.

Is this an exceptional case?

  1. [17]
    The factors in section 226(2) of the WWC Act are the factors that must be considered in making a decision about whether it is an exceptional case.
  2. [18]
    In terms of the level of satisfaction required to meet section 221(2) of the WWC Act, it has been accepted that while certainty is not required, the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[10]
  3. [19]
    The factors which must be observed and that I consider relevant are:

Is the offence a conviction or a charge?

  1. [20]
    The Applicant has five previous convictions for the offences listed in paragraph 11 above.
  2. [21]
    The Applicant’s last offending behaviour in February 2017 was particularly serious and involved the mother of the Applicant’s grandchildren.  There has been no offending behaviour since this date.
  3. [22]
    It is an evaluation of risk that the Tribunal must undertake in this review.  As noted in Grindrod (No 2) (2008).[11]

Is the offence a serious offence and if it is, whether it is a disqualifying offence.

  1. [23]
    The offences as the Applicant was charged are not classified as serious offences or disqualifying offences for the purposes of the WWC Act.

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

  1. [24]
    The Applicant’s offending behaviour spanned a seventeen (17) year period, with long periods of time where no offending behaviour occurred.

The nature of the offence and its relevance to employment that may involve children

  1. [25]
    The final conviction of the offending behaviour in 2017 was particularly disturbing as it involved the Applicant attending upon the home of the Applicant’s grandchildren and an assault on the mother of the Applicant’s grandchildren.

In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for decision

  1. [26]
    The Applicant received penalties for her offending behaviour over the time of the offending ranging from fines, probation and orders to pay compensation.
  2. [27]
    The Tribunal has taken particular note of Magistrate Simpson’s sentencing remarks, that the Applicant’s offence was a ‘serious example of assault occasioning bodily harm” and “if she had bitten a police officer she’d be off to jail.”

Other relevant circumstances

  1. [28]
    The Applicant admitted to the Tribunal that she had committed the offences.
  2. [29]
    The Applicant impressed that she had completed counselling and remained in counselling from the previous review in this Tribunal in 2018 until she was discharged from counselling approximately 3-5 months prior to the hearing of this review.
  3. [30]
    The Applicant showed insight and remorse for the offending behaviour.  It was particularly noticed that the relationship with the Applicant’s grandchildren’s mother had improved and the Applicant showed insight into the impacts of her behaviour on her grandchildren.
  4. [31]
    The Respondent seeks that the Tribunal consider that there is insufficient evidence to support that the counselling and treatment that the Applicant has undergone had greatly increased the Applicant's ability to manage her stress and anger and therefore reduce her risk of reoffending.
  5. [32]
    The Tribunal accepts that the Applicant has demonstrated insight into her offending behaviours and that she did not downplay or understate her actions.
  6. [33]
    I am not required to outline all the evidence provided to the Tribunal in this decision. The Tribunal accepts the evidence that the Applicant has developed insight and completed counselling to a level where she was discharged from counselling.

Conclusion

  1. [34]
    I have weighed all the matters in section 226(2) and the other circumstances, I have considered all the evidence, including the psychological evidence.  I have reached the conclusion that there is not an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued.

Footnotes

[1]Working with Children (Risk Screening and Management) Act 2000, section 5.

[2]Child related employment decision is defined to include a chapter 8 reviewable decision; Working with Children (Risk Management and Screening) Act 2000, section 358.

[3]Working with Children (Risk Management and Screening) Act 2000, section 360. See also section 6.

[4]Working with Children (Risk Management and Screening) Act 2000, section 221.

[5]Re FAA [2006] QCAT 15, [22].

[6]Working with Children (Risk Management and Screening) Act 2000, section 228(2)(a).

[7]Working with Children (Risk Management and Screening) Act 2000, section 228(2)(f).

[8]Re FAA [2006] QCAT 15, [29] citing the second reading speech Commissioner for Young Children and Young People Bill, p 4391.

[9]Jodie Helen Loy v Director-General Department of Justice and Attorney-General [2018] QCAT 381.

[10][2004] QCA 491, [30].

[11]Chief Executive Officer, Department of Child Protection v Grinrod (No 2) (2008) WASCA 28 [28].

Close

Editorial Notes

  • Published Case Name:

    Jodie Helen Loy v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    Jodie Helen Loy v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2023] QCAT 233

  • Court:

    QCAT

  • Judge(s):

    Member Burson

  • Date:

    03 May 2023

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
Loy v Director-General, Department of Justice and Attorney-General [2018] QCAT 381
2 citations
Jump To
Cite 1 - [2018] QCAT 381
Cite 2 - [2018] QCAT 381
Re FAA [2006] QCAT 15
3 citations
Jump To
Cite 1 - [2006] QCAT 15
Cite 2 - [2006] QCAT 15
Cite 3 - [2006] QCAT 15
Zipside Pty Ltd v Anscor Pty Ltd [2004] QCA 491
1 citation
Jump To
Cite 1 - [2004] QCA 491

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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