MJA v Director-General, Department of Justice and Attorney General
[2023] QCAT 294
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- MJA v Director-General, Department of Justice and Attorney General[2023] QCAT 294
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MJA v Director-General, Department of Justice and Attorney General[2023] QCAT 294
MJA v Director-General, Department of Justice and Attorney General[2023] QCAT 294
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | MJA v Director-General, Department of Justice and Attorney General [2023] QCAT 294 |
PARTIES: | MJA (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUStICE AND ATTORNEY GENERAL (respondent) |
APPLICATION NO/S: | CML546-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 4 August 2023 |
HEARING DATE: | 15 November 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Pearce |
ORDERS: | The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is "exceptional" within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – Applicant charged with a non-serious offence – whether the Applicant’s case is an ‘exceptional case’ Working With Children (Risk Management and Screening) Act 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) 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 RPG v Public Safety Business Agency [2016] QCAT 331 |
APPEARANCES & REPRESENTATION: | |
Applicant: | MJA, self-represented |
Respondent: | C.A Davis, Blue Card Services |
REASONS FOR DECISION
Background
- [1]MA (“the applicant”) was issued with a working with children clearance and blue card (“blue card”) under the Working with Children Act 2000 (Qld) (WWC Act) in 2004, 2006, 2009, 2011 and most recently on 19 December 2017.
- [2]Blue Card Services were subsequently notified by the Queensland Police Service that the applicant’s police information had changed. Accordingly, the applicant’s eligibility was re-assessed.
- [3]The respondent proposed to issue the applicant with a negative notice and invited the applicant to make submissions about whether or not there is an exceptional case for the applicant.
- [4]On 25 November 2020 the respondent issued a negative notice under the WWC Act.
- [5]On 18 December 2020, the applicant filed an application to the Queensland Civil and Administrative Tribunal (the Tribunal) to review the respondent’s decision.
Legal Framework
- [6]As noted by Carmody J in RPG v Public Safety Business Agency[1] the blue card regime seeks to ensure child safety by allowing only eligible adults to either work with, or care for, other people’s children, when undertaking what the Working with Children Act terms as ‘regulated employment’.
- [7]The blue card regime is administered by Blue Card Services. The major function of Blue Card Services is to engage in a screening process to determine who will be issued with a blue card, by means of a system of ‘positive’ and ‘negative’ notices.[2] Those who obtain a positive notice may obtain a blue card as of right and may work with children. Those given a negative notice may not apply for, or start, or continue in, regulated employment.[3]
- [8]Of particular relevance is section 221, which provides:
- Subject to subsection (2), the chief executive must issue a positive notice to the person if-
- the chief executive is not aware of any police information or disciplinary information about the person; or
- the chief executive is not aware of a conviction of the person for any offence, but is aware that there is 1 or more of the following about the person-
- investigative information;
- disciplinary information;
- a charge for an offence other than a disqualifying offence;
- a charge for a disqualifying offence that has been dealt with other than by a conviction; or
- the chief executive is aware of a conviction of the person for an offence other than a serious offence.
- If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.
- [9]In the particular context of ascertaining whether there is an exceptional case requiring the issue of a negative notice, the Working with Children Act mandates regard for the matters set out in s 226(2). Section 226(2) is not to be treated as an exhaustive list and does not expressly or impliedly confine the Tribunal to considering only those matters specified therein. Rather, the matters set out in s 226(2) are ‘merely certain particular matters which the [Tribunal] is obliged to consider in deciding the application’.[4]
- [10]Section 226 provides:
- This section applies if the chief executive-
- is deciding whether or not there is an exceptional case for the person; and
- is aware that the person has been convicted of, or charged with, an offence.
- The chief executive must have regard to the following–
- In relation to the commission, or alleged commission, of an offence by the person –
- whether it is a conviction or a charge; and
- whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
- when the offence was committed or is alleged to have been committed; and
- the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
- 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;
- Any information about the person given to the chief executive under section 318 or 319;
- Any report about the person’s mental health given to the chief executive under section 335;
- Any information about the person given to the chief executive under section 337 or 338;
- Anything else relating to the commission, or alleged commission, or the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
QCAT Review
- [11]The purpose of the review before QCAT is for the Tribunal to produce what the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) terms the ‘correct and preferable’ decision, after a fresh hearing, on the merits.[5] In exercising its review jurisdiction the Tribunal must decide the review in accordance with the QCAT Act and the Working with Children Act, and exercises all of the functions of the original decision-maker for the decision now under review.[6] Because of s 19(a) of the QCAT Act, the objects[7] of the Working with Children Act must still be upheld. That is a matter that is also reaffirmed by s 360 of the Working with Children Act, which provides that a child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child (or children) remains paramount.
- [12]
The Offending Behaviour
- [13]On 4 August 2020 the applicant was charged with leaving a child under 12 unattended.
- [14]The circumstances of the offending as described by police brief of facts are that on 6 August 2020 the police were contacted by Queensland Rail for an incident that occurred on 4 august 2020. Police obtained the CCTV footage which depicted the applicant park her car out the front of a railway station at 8:52am on 4 August 2022. The applicant left her vehicle parked on the side of the road and made her way to the rail platform. The applicant then boarded a train and engaged in a physical altercation and argument with a male on board the train. The train then departed the platform and the applicant then stepped off the train at the following station. The applicant attempted to drag the male off the train but was unsuccessful. The applicant approached the railway staff and told them she had left her child in her car that was parked at the prevous station. Railway staff contacted the staff at the other station, and they retrieved a 10-week-old baby from the vehicle which had been left unlocked. The staff member who retrieved the infant child described him as distressed and hot to the touch. The applicant caught the train back to original station, retrieved her child and left. The police made investigations and determined the applicant was the driver of the vehicle. They interviewed the applicant at her address. A male resembling the male on the tape was present at the address. The police noted the house was clean and tidy and the child appeared well provided for. Due to the age of the child and the altercation seen with the male the police deemed the actions of the applicant inappropriate and unreasonable in the circumstances and charged her.
- [15]The prosecutor discontinued the proceedings after offering no evidence in relation to the charge. The applicant was discharged accordingly.
- [16]Until this time the applicant had no criminal history. This one discontinued charge is the only entry on the applicant’s criminal history. The applicant has an extensive traffic history.
The Hearing
- [17]The applicant provided material by way of letter and reference for consideration of the Tribunal. It was clear from this material that the Applicant was well regarded and well respected in her prevous employment roles. It was also clear the in the recent past the applicant has had a culmination of personal relationships and events combined with mental health issues and illicit substance abuse which have caused her great distress and trauma.
- [18]The applicant appeared at the hearing in a distressed state advising that she was being required to move from her accommodation and had been unable to secure new accommodation. She was understandably concerned and distressed and distracted and found it difficult to present her application in an ordered state. What the applicant did make very clear to the Tribunal was the love of her career working with children and er wish to return to that work by accessing a blue card.
- [19]There were a number of matters of the Applicant’s conduct that raised issues in relation to the consideration of providing a Blue Card to the Applicant. The first was addressed in the police charge following the Applicant leaving her son in the car whilst she boarded the train. Also of concern was the Applicant’s history with illicit drugs, her mental health history and her driving record. Additionally, concerns were also raised about the Applicant’s insight and behaviours during difficulties within domestic relationships and the involvement of Child Safety with the Applicant following the birth of her son.
- [20]All of these issues were discussed in details and the Applicant was cross examined. What is clear to the Tribunal is that the applicant has experienced some significant periods of trauma and distress. She is commendably raising her child alone and is making whatever efforts she can to better herself. What is also clear is that in times of distress in various environments she has made choices impulsively which have resulted in long term detriment to herself. The respondent’s position that this is a factor to be considered in granting a blue card cannot be dismissed. It needs to be considered whether during times of extreme emotion, trauma or distress whether the applicant can act in the best interests of children or protect children with whom she works.
Section 226(2) matters
- [21]Section 226(2) of the Working with Children Act requires that in cases where a person has been convicted of, or charged with, an offence that regard can be had for certain matters identified therein:
- Whether the offence is a conviction or a charge
- [22]The offence was a charge only for leaving a child unattended. The charge was withdrawn.
- Whether the offence is a serious offence, and, if it is, whether it is a disqualifying offence.
- [23]
- When the offence was committed or is alleged to have been committed
- [24]The applicant committed the offence in 2020. The applicant’s submissions place emphasis on the passage of time in this matter and the difficulties she was experiencing at that time. As discussed in the Appeal Tribunal the passage of time without further offending is not, of itself, conclusive that the risk of harm to children is reduced.[12]
- The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children
- [25]The nature and circumstances of the applicants offending needs to be seriously considered. Ot does directly involve the treatment of a child. The applicant gave evidence she was under extreme distress during this time and that she hadn’t intended to leave her child and enter the train. What the situation does indicate is that while the sites the applicant es experiencing was understandable, she failed to put the interests of her child first in this instance.
- [26]In this particular case, it can be argued that the applicant’s behaviour demonstrates a disregard for the bests interest of a child when she is overwhelmed with other distressing circumstances in her life. It is acknowledged that the event took place during a time of peak distress as explained by the applicant. However, it cannot be ignored that the applicant deliberately paved her child in the car, drove to the train station, exited the vehicle leaving the baby inside and went to the train platform. She then entered the train and it moved. At no time during this period did she stop and consider her actions to perhaps have an alternative person mind her child, take her child with her or simply let her partner leave and deal with that later. Her efforts to convince him to stay seemed to overtake her thinking. It must be stressed that the Tribunal accepts the applicants’ statements that she did not intend to board the train and leave the station, and this happened before she could react, but this was a distinct possibility that may arise, and this was not considered by the applicant at the time.
- [27]The issuing of a blue card expects the holder to be able to act in manner that promotes the safety of children and promotes physical and psychological wellbeing.
- In the case of a conviction the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence or decided not to make a disqualification order under section 357, the Court’s reason for the decision.
- [28]In this case the charged was discontinued.
Section 226(2)(b) Any information about the person given under sections 318, 319, 335, 337, or 338.
- [29]No information has been placed before the Tribunal.
Section 226 (2)(e) Anything else relating to the commission, or alleged commission, of the offence that is reasonably considered to be relevant.
- [30]It must be noted that this charge arose from what appears to be a “perfect storm” of events for the applicant and that at no time does the tribunal consider her acts a deliberate act of neglect towards her son. What is of concern to the Tribunal is the acts of the applicant that she chose to undertake during a time of complete distress that could have placed her child at risk.
- [31]The applicant has limited supports around her and is still dealing with some very difficult personal matters including being a single mother, trying to obtain stable accommodation and negotiating parenting with the father of her child with a back ground of domestic violence. There are concerns for how the applicant would choose to act during times of distress with children in her care.
The Decision
- [32]The decision before the Tribunal is not whether the Applicant can continue in her role as a Conference Convener/Case Manager at the Department. The decision before the Tribunal is whether, having regard to the paramount principle under the WWC Act, the Applicant's case is an exceptional case in which it would not be in the best interests of children for her to be issued with a blue card.
- [33]It is the Tribunal’s position that the object of the Act and the principle that the welfare and best interests of a child are paramount support a precautionary approach to decision making in child-related employment matters.
- [34]The Tribunal must also consider transferability of blue cards under the WWC Act when having regard to the best interests of children.
- [35]Overall, the material before the Tribunal and Applicant's evidence at the hearing raises questions about the Applicant's ability to act protectively of children and provide them with a protective environment in several respects. The evidence raises questions about the Applicant's use of illicit substances, her respect for the law and lawful behaviour, her ability to regulate her emotions, control her impulses, present as a positive role model for children and young people, and effectively manage her mental health (now and into the future). The evidence suggests the Applicant's insight is not sufficient to ensure she will not repeat her behaviours of concern in the future.
- [36]The Tribunal find’s that this case is an exceptional case such that it would not be in the best interests of children and young people for the Applicant to be issued with a blue card.
Order
- [37]The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is "exceptional" within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
Footnotes
[1][2016] QCAT 331. [8]-[19].
[2]Working with Children Act, s 220.
[3]Working with Children Act, s 257.
[4]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, (Philipp ides J).
[5]QCAT Act, s 20.
[6]QCAT Act, s 19.
[7]Working with Children Act, s 5.
[8]Working with Children Act, s 353.
[9]Working with Children Act, s 221(2).
[10]Working With Children Act, sch 2.
[11]Working With Children Act, sch 4.
[12]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [55].