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TA v Director-General Department of Justice and Attorney-General[2023] QCAT 342

TA v Director-General Department of Justice and Attorney-General[2023] QCAT 342

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

TA v Director-General Department of Justice and Attorney-General [2023] QCAT 342

PARTIES:

TA

(applicant)

v

Director-General DepartmeNT of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

CML060-21

MATTER TYPE:

Childrens matters

DELIVERED ON:

8 September 2023

HEARING DATE:

31 May 2023

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

CHILDRENS MATTERS – BLUE CARD – where applicant carried on a regulated business without holding a working with children clearance

Working with Children (Risk Management and Screening) Act 2000 (Qld), schedule 2, schedule 4, s 172, s 176B, s 221, s 226, s 228

Human Rights Act 2019 (Qld), s 8, s 13, s 25, s 31, s 34, s 58

APPEARANCES & REPRESENTATION:

 

Applicant:

Mr Watters of counsel

Respondent:

Ms Davis

REASONS FOR DECISION

  1. [1]
    The applicant has applied for a review of the decision made by the respondent on 27 January 2021 to issue him with a negative notice. A negative notice means that the applicant is not able to be issued with a blue card.
  2. [2]
    The applicant works as a naturopath, Chinese medicine healer, yoga teacher and massage specialist.
  3. [3]
    On 15 May 2021, the applicant was charged with three offences:
    1. Indecent treatment of a child under 16 under 12 years (s 210(1)(A) and (3) of the Criminal Code). Pursuant to Schedules 2 and 4 of the Working with Children (Risk Management and Screening) Act 2000 these charges are categorised as both serious and disqualifying offences;
    2. Carrying on a regulated business without holding a working with children clearance; and
    3. Failure to have risk management strategies in place in a regulated business.
  4. [4]
    The charge of indecent treatment of a child proceeded to trial and the applicant was found not guilty. 
  5. [5]
    On 23 June 2022, the applicant pleaded guilty to the charge of carrying on a regulated business without holding a working with children clearance. This was a breach of s 176B of the Act. He was fined $300.
  6. [6]
    The charges of failure to have risk management strategies in place in a regulated business did not proceed.
  7. [7]
    The applicant does not have a conviction for a “serious offence” or a “disqualifying offence”, as those terms are used in the legislation. Accordingly, he must be issued with a positive notice unless the Tribunal is satisfied that this is an exceptional case in which it would harm the best interests of children for applicant to be issued with a positive notice. 
  8. [8]
    In considering the application, the paramount consideration for the Tribunal is the welfare and best interests of children, as every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
  9. [9]
    The Act sets out matters which the Tribunal must take into account in making that determination, but this is not an exhaustive list.  This is a fresh hearing on the merits, not an appeal, and the Tribunal must determine the correct and preferable decision. Neither party bears an onus of proof. The Tribunal must determine, on the balance of probabilities, whether this is an exceptional case in which it would harm the best interests of children for the applicant to be issued with a positive notice. 
  10. [10]
    In conducting the review, the Tribunal is acting as a public entity, as that term is described in the Human Rights Act 2019 (HRA). Accordingly, it is unlawful for the Tribunal to act or make a decision in a way that is not compatible with human rights, or in making the decision, to fail to give proper consideration to a relevant human right. A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA.   
  11. [11]
    An in-person hearing was conducted and the applicant attended and provided evidence in support of his application. I also have the benefit of the written material filed by the parties.  
  12. [12]
    The applicant was born and trained overseas, and has worked in America, Africa and India before coming to Australia. He states that he has a doctor’s degree in naturopathy and yoga and is a registered with AHPRA as a Chinese medicine practitioner. He states that he specialises in areas of “mental and emotional health dealing with clients experiencing anxiety, stress, and fear blocks”.
  13. [13]
    He is now a citizen of Australia. In Australia, he worked as an employee and as a contractor for a business which he says he left in February 2020 following a dispute over unpaid wages and payments.
  14. [14]
    In April 2020 he started his own business and was offered space to set up in a warehouse used by friends V and S in their business. In exchange for their help, the applicant offered free treatments to V and S and their extended family.
  15. [15]
    The applicant states that he did not generally treat children, who were not his primary clientele, and so was of the understanding that he did not require a blue card. He recalled at the hearing that he formed that view following telephone conversations with APRHA and perusal of their website. 
  16. [16]
    In mid-2020, V asked the applicant whether he could assist her granddaughter who was experiencing pain. Arrangements were made for the applicant to provide treatment to the child and her brother in July. They returned in August and September for further treatments.
  17. [17]
    A complaint was subsequently made that the applicant had indecently treated the granddaughter during the last treatment by massaging her chest. The applicant has always denied the allegation.
  18. [18]
    The material before the Tribunal addresses in some detail the allegations which formed the basis of the charge of indecent treatment. That charge was finalised, after a criminal hearing, with a finding of not guilty. The respondent submits that, notwithstanding a recent Appeals Tribunal decision[1], the legislation provides that all charges should be considered by the Tribunal, including if they are finalised by way of a not guilty finding.
  19. [19]
    I must issue a negative notice if I am aware of “relevant information”, and I am satisfied that this is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a positive notice[2].
  20. [20]
    Ultimately, it has not been necessary to have regard to the charge of indecent treatment or the allegations raised. Similarly, it has been unnecessary to consider the charge relating to the applicant’s alleged failure to develop and implement risk management strategies.
  21. [21]
    The conviction is relevant information. The circumstances surrounding the charge which the applicant pleaded guilty to are sufficient to satisfy the Tribunal that this is an exceptional case in which it would not be in the best interests of children for him to be issued with a positive notice. That matter will form the basis of this decision.
  22. [22]
    The applicant applied for and was granted a blue card in around September 2020. He advised the Tribunal that he applied for the blue card at the suggestion of his friends V and S. He held the blue card until the negative notice was issued. He states in material filed with the Tribunal and dated 18 May 2021 and 9 September 2022 that he had not held a blue card prior to September 2020 as he “assumed and believed that my AHPRA registration was sufficient to cover me to be allowed to treat children”. He says he now realises that the APHRA registration only covers acupuncture treatments for children. 
  23. [23]
    His registration with AHPRA is subject to conditions issued by the Queensland Office of the Health Ombudsman. The conditions have been changed over time. Currently, he is prohibited from having contact with patients under 18 years of age. In his statement of 9 September 2022, the applicant asks the Tribunal to vary those conditions. That is not within the scope of this review, which is considering only whether decision by the respondent to issue the negative notice should be changed.
  24. [24]
    The applicant states that he has never been the subject of any previous or subsequent complaint.
  25. [25]
    The Tribunal has been provided with the Court Brief prepared by the Queensland Police Service in relation to the charge of carrying on a regulated business without a blue card. The police claimed that:
    1. the applicant ran his business from March / April 2020 until September 2020 without a blue card;
    2. during that time he provided massages to approximately 6 children;
    3. he also provided “other naturopathic services” to children, including for anxiety / self-harm related issues; 
    4. parents were sometimes not present during the treatments; and
    5. the applicant had not developed any risk management strategies regarding the treatment of children.
  26. [26]
    The applicant ultimately pleaded guilty to that charge.
  27. [27]
    It is accepted that the applicant treated children at his business without holding a blue card. During the Tribunal hearing and in his submissions, the applicant, through his legal representative, repeatedly describes the charge as an “administrative charge… which was described in court as a very minor matter… very minor thing”.
  28. [28]
    I have been provided with a copy of the transcript of Court proceedings. I note that it was the applicant’s legal representative in the criminal proceedings who described the matter as a “minor matter” and a “very minor thing”. This Tribunal does not share that view.
  29. [29]
    There was some discussion in the hearing about the number of children the applicant treated. His legal representative advised the trial judge that the applicant was not treating children consistently and “it was more a misunderstanding”.
  30. [30]
    The Tribunal has been provided with a transcript of the applicant’s interview with OHO officers on 18 November 2020. I note that the applicant indicated that:
    1. English is not his first language, but that he would try his best during the interview;
    2. he was registered with ANTA as a naturopath, with AHPRA as an acupuncturist / Chinese Medicine Practitioner, and with Yoga Alliance as a yoga teacher;
    3. he provides treatments of massage, iridology, acupressure, uses herbal poultice and reflexology as a naturopath;
    4. he has worked as an energy healer providing reiki and chakra balancing services;
    5. he provides meditation and yoga classes as part of his business;
    6. over the previous 12 months, he had provided treatments to children, although “not a lot”. He estimated that he had seen approximately six children for massages. He had also seen children approximately 13 – 15 years of age, although not for massages as “sometimes they are more of a chat”;
    7. he did not have particular policies relating to treating children but “parental consent and parental presence is what we say”;
    8. there is consent provided when parents fill in the form and they’re regularly told that it’s mandatory to sit in the session, but if they choose to sit outside or in reception the door is left open “so they know what we are doing”. The arrangements were “not concrete” because he did not see a lot of children. If children were involved in a consultation “when they’ve got an extreme issue at school they want to talk about, and they don’t feel comfortable with their parent in front of them”, the parents wait outside.
    9. he considers that treating anxiety and self harm is within his scope of practice as a naturopath, as his focus had been on mental and emotional health for the last four or five years. He denies providing counselling services.
    10. he did not have a risk management framework in place for treating children, although he left the door open when treating children.
    11. he had begun to apply for a blue card in 2020 but something or other came up and he wasn’t able to complete the process. He had applied initially to keep his options open in terms of treating children, and because ANTA had a note that if you’re working with children it’s important to get a blue card. 
  31. [31]
    The applicant advised the Tribunal that he had been put on the spot during the OHO interviewing, as he hadn’t expected that it would be a “full blown investigation”. He pointed out that English is not his first language, and had misunderstood how APRHA differs from the blue card scheme. 
  32. [32]
    The Tribunal has been provided with a copy of a letter from the Office of the Health Ombudsman to the applicant dated 17 August 2022. The OHO indicates that some of the previous conditions attached to the applicant’s registration were to be removed. Some conditions remained. The OHO maintained concerns due to a number of factors, including the applicant’s indication during an interview that he:
    1. didn’t “know exactly” what informed consent is;
    2. had provided massage treatments to about six other children;
    3. did not have a written policy or procedure or risk management framework in place for child clients;
    4. did not hold a blue card when providing treatment to children;
    5. relied exclusively on his own self described high standards of ethics and morals when treating patients; and
    6. the forms, qualifications and codes provided to them by the applicant were relevant to his practice, but they did not sufficiently address or satisfy the requirements of a blue card holder. The compliance division of blue card services had advised the OHO that the information was not sufficient and did not constitute a risk management strategy.
  33. [33]
    As at 17 August 2022, the OHO continued to hold the belief that the applicant did pose a serious risk to females under 18 years of age, and continued to impose the condition that he must not have contact with patients under 18 years of age. This was because, amongst other things, he:
    1. did not understand consent requirements and the need to have parents of children under 18 years of age involved, demonstrating a lack of appreciation of the importance of a parent or guardian being in the room during treatment;
    2. had demonstrated “overall apathy” towards ensuring the safety of child patients; and
    3. had demonstrated a lack of understanding of the requirements to practice safely and his legal requirements when treating children.
  34. [34]
    At the Tribunal hearing, the applicant gave evidence that:
    1. he has treated five or six children over the last 10 years of practice (some at his previous place of employment). He did not have a blue card when treating the children;
    2. he considered the charge was raised because there was some “paperwork lacking”, and that he had pleaded guilty to “running a business without sufficient documents” (a blue card);
    3. it was significant that he was running the business without a blue card because if he had a blue card he could have avoided all these legal issues, and would have saved him from being charged with the charge which he pleaded guilty to. It was also important to hold a blue card for the safety of children; and  
    4. he has learned that it is important to follow regulations as minor negligence can lead to major problems.
  35. [35]
    The applicant submitted that:
    1. the “administrative charge” arose because the applicant had investigated and mistakenly considered he did not require a blue card to perform services to children in his practice. He believes that his allied health registration body (ANTA) changed its advice concerning blue card requirements after he originally sought guidance;
    2. he has now taken steps to establish risk management procedures, documentation, consent forms, patient records, and related strategies to ensure he remains compliant in the future;
    3. because English is not his first language, some blue card requirements were misunderstood by him or lost in translation;
    4. the guilty plea was to a “very minor” administrative breach of the Act; and
    5. the Tribunal must have regard to the matters set out in sections 226 and 228 of the Act in determining whether the negative notice should be issued.
  36. [36]
    The Department submits that:
    1. the Tribunal should take into account that the applicant continues to have conditions on his registration as a health practitioner as the OHO appears to continue to be of the view that the Applicant poses a serious risk to patients under 18 years of age;
    2. the breach of the Act which resulted in a conviction reflects adversely on the applicant’s ability to identify risk. His failure to comply with the Act negates the objects of the Act: the promotion and protection of the rights, interests and wellbeing of children and young people via, among other things, the development and implementation of risk management strategies;
    3. the legislative obligations reflect the minimum standard expected of the applicant, and he failed to meet those standards for some time;
    4. the Tribunal should take into account the applicant’s evidence that:
      1. (i)
        he did not contact the respondent for advice about whether he needed a blue card;
        1. (ii)
          he applied for a blue card in 2019 because he knew that he required one if he was to work with children;
        1. (iii)
          he ultimately did not proceed with the application because he was not treating children;
        1. (iv)
          he subsequently decided to treat children;
        1. (v)
          he only later applied for a blue card because his friends V and S suggested he should;
        1. (vi)
          even after obtaining the blue card in September 2020, he did not put in place a written strategy in compliance with s 172 of the Act. This was confirmed in his interview with OHO officers in November 2020; and
        1. (vii)
          the applicant was unable at the hearing to articulate what steps would be required to comply with s 172 of the Act, suggesting that he had outsourced the preparation of a risk management plan to other practitioners he was in contact with online.
  1. the applicant’s conviction demonstrates that he was not sufficiently vigilant to his circumstances and the need to act protectively towards children;
  2. these issues reflect poorly on the applicant’s appreciation of the importance of prioritising the interests and welfare of children and young people and providing them with a protective environment; and
  3. the applicant’s history reflects poorly on his ability to take seriously his responsibilities as a business owner / director of a business that provides services to children.
  1. [37]
    The applicant submits that he is not an unacceptable risk to children and that this is, therefore, not an exceptional case. The legislation does not contain any reference to an unacceptable risk test, and that is not the test the Tribunal must apply. The Tribunal must determine whether this is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a positive notice. The Tribunal must consider the relevant considerations outlined in sections 226 and 228 of the Act.
  2. [38]
    In relation to the factors set out in s 226 of the legislation, the Tribunal notes that:
    1. in May 2021, the applicant was convicted of an offence which occurred in 2020, and is not a serious or disqualifying offence;
    2. the offence is highly relevant to the carrying on of a business or undertaking employment that may involve children. The applicant provided massage and other services to children without holding a blue card, and in the absence of any risk management or other required procedures in place; and
    3. the court imposed a fine of $300.
  3. [39]
    In relation to s 228 of the legislation, the Tribunal finds that the material from OHO 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 applicant. It is further noted that:
    1. the applicant failed to obtain a blue card when providing treatments to children. Further, he failed to establish any risk management strategies, procedures or protocols to protect children he treated;
    2. this failure is grave, as there was no safety structure in place to support and protect children, and the applicant himself remains unaware of the steps which need to be taken to provide children with a safe place to receive treatment;
    3. the conduct occurred some three years ago. At the hearing, the applicant did not demonstrate an understanding of and commitment to the requirements of the Act; and
    4. the breaches of the Act are highly relevant as they go directly to the ability of the applicant to protect and provide safety to children.
  4. [40]
    The Tribunal finds that the applicant has failed to acknowledge the importance of conducting a business in a way that protects children. He continues to show a lack of appreciation for the principles underlying the Child Protection Act and has not complied with its provisions.
  5. [41]
    The applicant’s continued reference to the criminal charge he was convicted of as a “very minor matter” is an example of his lack of understanding about what is expected of the holder of a blue card. The applicant has not demonstrated an understanding of the need to provide services to children in a safe way, and in compliance with the law. He was unable to explain either the actions expected of him, or the reasons that the expectations are set.
  6. [42]
    The applicant provided massage and other personal services to children in breach of the legislation over a number of years. He has not acknowledged the seriousness of his actions and did not satisfy the Tribunal that he has the understanding and capacity to comply with the legislation. This is sufficient to establish an exceptional case in which it would not be in the best interests of children for him to be issued with a positive notice. 
  7. [43]
    In making this decision, this Tribunal must give proper consideration to relevant human rights under the Human Rights Act 2019 (Qld) (‘HRA’). It is unlawful for the Tribunal, conducting the review as a “public entity” and acting in an administrative capacity, to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision.[3]
  8. [44]
    A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA. Human rights may be limited only if permitted under the Act,[4] and a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  9. [45]
    To give proper consideration to a human right, the Tribunal must identify the human rights that may be affected by this process and decision and consider whether the decision would be compatible with human rights.[5]
  10. [46]
    I consider the following human rights are potentially impacted through this process and by this decision:
    1. s 25 privacy and reputation
    2. s 31 fair hearing
    3. s 34 right not to be tried or punished more than once
  11. [47]
    I am satisfied that the rights to a fair hearing have not been limited. The application has been determined by a competent, impartial and independent tribunal after a fair hearing. The parties are being advised of the reasons for the decision. Accordingly, the process and decision are compatible with human rights.[6]
  12. [48]
    This decision does not amount to the applicant being tried or punished more than once. The applicant’s reputation has not been unlawfully attacked.
  13. [49]
    There has been no limit on the applicant’s human rights.
  14. [50]
    The decision under review is confirmed. 

Footnotes

[1]DVL v Department of Justice and Attorney-General [2023] QCATA 52.

[2]   s 221 WWC Act.

[3]  s 58 HRA.

[4]  s 8, s 13 HRA.

[5]  s 58(5) HRA

[6]  s 8 HRA.

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Editorial Notes

  • Published Case Name:

    TA v Director-General Department of Justice and Attorney-General

  • Shortened Case Name:

    TA v Director-General Department of Justice and Attorney-General

  • MNC:

    [2023] QCAT 342

  • Court:

    QCAT

  • Judge(s):

    Member Goodman

  • Date:

    08 Sep 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
DVL v Department of Justice and Attorney-General [2023] QCATA 52
1 citation
Jump To
Cite 1 - [2023] QCATA 52

Cases Citing

Case NameFull CitationFrequency
TLZ v Director-General, Department of Justice and Attorney General [2023] QCAT 4481 citation
1

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