TD v Director-General, Department of Justice and Attorney General
[2023] QCAT 397
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- TD v Director-General, Department of Justice and Attorney General[2023] QCAT 397
- Add to List
TD v Director-General, Department of Justice and Attorney General[2023] QCAT 397
TD v Director-General, Department of Justice and Attorney General[2023] QCAT 397
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | TD v Director-General, Department of Justice and Attorney General [2023] QCAT 397 |
PARTIES: | TD (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) |
APPLICATION NO/S: | CML344-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 21 August 2023 |
HEARING DATE: | 29 July 2022 |
HEARD AT: | Cairns |
DECISION OF: | Member Pearce |
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 – application for review of decision to issue negative notice – where applicant has convictions and charges – where the offences were not serious or disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether traffic offences are offences – 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 Human Rights Act 2019 (Qld) Working with Children (Risk Management and Screening Act 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor [2019] QCAT 342 Briginshaw v Brigjnshaw and Anor (1938) 60 CLR 336 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commission for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 DEF v Director General, Department of Justice and Attorney General [2022] QCAT 127. DL v Director-General, Department of Justice of Attorney General [2021] QCAT 61 DM v Director-General, Department of Justice and Attorney General [2022] QCAT 199 DVL v Director-General, Department of Justice and Attorney General [2022] QCAT 33 John Fairfax & Sons Ltd v Police Tribunal (NSW) 5 NSWLR 465 Kent v Wilson [2000] VSC 98 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 RPG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 331 SSJ v Director General, Department of Justice and Attorney General [2020] QCAT (unpublished decision, 17 June 2020), WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Sanders, A. Department of Justice and Attorney-General |
Respondent: | Mallory, J. ATSILS |
REASONS FOR DECISION
Background
- [1]The applicant has applied for the review of a reviewable decision under the Working with Children (Risk Management and Screening Act 2000 (the WWC Act).
- [2]The applicant applied for a working with children clearance and blue card (‘blue card’) under the WWC Act.[1]
- [3]The respondent proposed to issue the applicant with negative notice and so invited the applicant to make submission about whether or not there is an exceptional case for applicant.
- [4]On 17 August 2020, after assessing the applicant’s eligibility, the respondent issued a negative notice under the WWC Act. The applicant was provided with written notice of the decision. The reasons for the decision and the relevant review information.
- [5]Of note was the information obtained from the applicant’s traffic history – some 13 entries in addition to information relevant to Child Safety which related to information provided to the respondent regarding the applicant’s care of foster children.
- [6]On 27 August 2020 the applicant filed an applicant to the Queensland Civil and Administrative Tribunal (the Tribunal) to review the respondent’s decision that the applicant’s case was an “exceptional case” in which it would not be in the best interest of children for the applicant to be issued with a blue card.
- [7]On 29 July 2022 an oral hearing was conducted in the Tribunal.
Legal Framework
- [8]The principal under which the WWC Act must be administered is that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[2] A child-related employment decisions must be reviewed under the principle that the welfare and best interests of the child are paramount.[3]
- [9]The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children in Queensland through a scheme, “…the screen persons who work, or wish to work, with children, to ensure that they are suitable persons to do so”.[4] A review of a reviewable decision must be decided in accordance with both the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (“The QCAT Act”).[5]
- [10]
- [11]The nature of the Tribunal’s review of whether the applicant’s case is an exceptional case, is not that of an appeal, rather it is a fresh hearing. The QCAT Act provides that the Tribunal has all the functions of the decisions maker of the decision being reviewed[8] and must undertake a fresh hearing on the merits.[9]
- [12]A fresh hearing on the merits means the Tribunal can consider not only the evidence that was before the decision maker when the original decision was made, but also and additional or more recent evidence to the Tribunal’s review.[10]
Amendments to the WWC Act
- [13]On 20 May 2022, amendments to the WWC Act, including amendments to section 221 of the WWC Act, came into effect pursuant to the Child Protection Reform and Other Legislation Amendment Act 2022.
- [14]The relevant transitional provisions at section 597 of the WWC Act stipulate that if a review or appeal “was started but not decided or otherwise ended before the commencement of a relevant amendment” then “the entity hearing the review or appeal must apply this Act, as in force from the commencement of the relevant amendment, in relation to the subject matter of the review or appeal.”
- [15]The present application was started, but not yet decided or otherwise ended, before the commencement of the relevant amendments, the Tribunal is required to apply the relevant amendments to section 221 to the WWC Act in this case.
- [16]Section 221 of the WWC Act now reads, and is to be applied as follows:
221 Deciding application – no relevant information or conviction etc, for non-serious offence
- The Chief executive must issue a working with children clearance t the person if the chief executive-
- (a)Is not aware of any recent information about the person or;
- (b)Is not required to issue a negative notice to the person under subsection (2).
- (a)
- The chief executive must issue a negative notice to the person if the chief executive–
- is aware of relevant information about the person and;
- 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 working with children clearance to the person.
- For subsections (1) and (2), the following information about the person is relevant information-
- information that the person has–
- (i)a charge for an offence other than a disqualifying offence; or
- (ii)a charge for a disqualifying offence that has been dealt with other then by a conviction; or
- (i)
Note-
for charges for disqualifying offences that have not been dealt with, see chapter 7, Part 4, division 4 and sections 199, 295(1) and 296.
- a conviction for an offence other thana serious offence;
- investigative information;
- domestic violence information
- disciplinary information
…
- [11] 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.
Exceptional Case
- [17]The term exceptional case is not defined in the WWC Act. What is an exceptional case is a question of fact a degree to be decided in each individual case having regard to “the content of the legislation which contains them, the intent ands purpose of that legislation, and the interest of the persons whom it is here, quite obviously designed to protect: children”.[12]
- [18]Where a persona has bene charged with or convicted of an offence the Tribal must have regard to the consideration prescribed by section 226 of the WWC Act in determining whether an exceptional case exists. Where a person has other relevant information, the tribunal must also have regard to the considerations prescribed I section 228 of the WWC Act.
- [19]Section 226 is not an exhaustive list of considerations and does “not expressly or impliedly continue the [Tribunal] to considering only the matters specified therein”, rather they are “merely certain particular matters which the Tribunal is obliged to consider in deciding the application”.[13]
- [20]It is the task of the tribunal to decide the question of whether an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[14]
- [21]Neither party bears the onus in determining whether an exceptional case exists.[15]
The paramount principle under the WWC Act
- [22]The WWC Act is to be administered under the principle that “the welfare and best interests of a child are paramount”.[16] Any doubt about the direct relevance of the principle to the review of child-related employment decisions is removed by section 360 of the WWC Act which provides that “child-related employment decisions is to be reviewed under the principle that the welfare and best interested pf a child are paramount.”
The Human Rights Act
- [23]The Tribunal has accepted that, when conducting a review of a child-related employment decision, the Tribunal is a “public entity” under the Human Rights Act 2019 (Qld) (“HRA”) and as such the HRA applies.[17]
- [24]Under section 58 of the HRA it is unlawful for a public entity:
- To act or make a decisions in a way that is not compatible with human rights; or
- In making a decision, fail to give proper consideration to a hie right relevant to the decision.
- [25]There are likely to be a number of human rights impacted by a child-related employment decision made under WWC Act including the human rights of the applicant and the human rights of others, particular the right of every child to the “protection that is needed by the child, and is in the child’s best interest, because of being child, as provided for in section 26(2) of the HRA.
- [26]A decision will be compatible with human rights if it does not limit a human right or if it limits a human right in a way which justified by the HRA.
The task before the Tribunal – Is this an exceptional case?
- [27]In making its determination the Tribunal must:
- Have regard to the “paramount principle” under the WWC Act;[18]
- Consider the mandatory factors under section 226(2) of the WWC Act;
- Consider the mandatory factors under section 228(2) of the WWC Act;
- Consider other factors relevant to the decision;[19] and
- Give proper consideration to a human right relevant to the decisions.[20]
Traffic History – conviction or charge?
- [28]The applicant made submissions that he had no criminal history. The applicant refutes that traffic history can be considered a charge. It is noted the applicant has a traffic history at the time of the hearing comprising approximately 13 entries as at September 2018. It was the respondent’s argument that a person’s traffic history constitutes a charge for the purposes of the WWC Act.[21] Schedule 7 of the WWC Act defines a charge as follows:
Charge, of an offence means a charge in any form, incldu9ing for example, the following-
- A charge or an arrest;
- A notice to appear served under the Police Powers and Responsibilities Act 2000 (Qld), section 382;
- A complaint under the Justices Act 1886;
- A charge by a court under the Justices Act 1886 (Qld), section 42(1A), or another provision of an Act;
- An indictment.
- [29]It is not disputed that the entries on the applicant’s traffic history are offences pursuant to various provisions under the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (“Road Rules”) including excessive speeding under section 20 of the Road Rules.
- [30]
- [31]In DL, the Tribunal constituted by Member Garner, explicitly considered whether entries on a person’s traffic history constitute charges for the purpose of the WWC Act and held that:
…the applicant’s traffic history includes “charges for an offence” and constitutes “criminal history” for the purposes of Chapter 8 of the WWC Act.[24]
- [32]Similarly in DEF, the Tribunal constituted by Member Cranwell, held that:
….to apply the restrictive approach put forward by the applicant appears to be contrary to the definition contained within Schedule 7 to the Working With Children Act. That definition is an inclusive and non-exhaustive definition and provides that a charge means “a charge in any form”. I am unable to see why this would not extend to an offence initiated by an infringement notice.[25]
- [33]In an unreported oral decision of JME v Director General, Department of Justice and Attorney General, the Tribunal constituted by Member Katter, found:
Whilst a literal interpretation of the word “charge” could lead to some consternation regarding whether or not the traffic history satisfies the definition of a charge, it would lead to an absurd result in this matter if [the respondent] and now the Tribunal were not able to give consideration to whether this issue is an exceptional case.
In accordance with the definition of “charge” being a charge in any form, given broad scope… as to what constitutes a charge, the Tribunal s satisfied, for the purposes of this application, that the traffic history and offences therein enable a Tribunal to consider section 226(2) of the Act. That is, the Tribunal s adopting a purposive approach in its interpretation of how the Act should operate. In support of this approach is section 6 of the Act, that sets out:
The Act is to be administered under the following principles: (a) the welfare and best interests of a child are paramount, and (b) every child is entitled to b cared for in a way that protects the child from harm and promotes the child’s wellbeing.
To take a technical approach to the definition of the word “charge” or to apply a restrictive definition to that word would not be in accordance with the purpose of the Act, having regard to the circumstances of the present matter before the Tribunal.
- [34]These matters having been addressed previously – the Tribunal concurs with this view and section 226 is involved. It is also noted that The Tribunal also considered that the information could be taken into account as “relevant information” under section 221(d) of the WWC Act.
- [35]The Tribunal acknowledges the applicant does not have any convictions – the applicant has never been found guilty of an offence in a court of law.
Section 226(2) WWC Act considerations
- [36]If accepted that the applicant’s traffic history amounts to a “charge” the Tribunal must consider the list of factors prescribed by section 226(2) in determining whether an exceptional case exists.
Whether to offence is a conviction or a charge[26]
- [37]The applicant has a traffic history comprising 13 offences which constitute charges under the WWC Act.[27]
Whether the offence is a serious or disqualifying offence[28]
- [38]
When the offence was committed or is alleged to have been committed[31]
- [39]The applicants traffic offences as listed were committed between 1989 and 2015. It is to be noted that the applicant was previously issued blue cards in 2006, 2008, 2010, 2013 and 2016.
The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children.
- [40]The applicant’s traffic history comprises the following offences:
6 x speeding
1 x driving whilst using handheld phone
1 x failure to wear a seatbelt
2 x failure to comply with traffic signs
1 x using a vehicle without illegible identifying particulars
2 x unsafe vehicle loading
- [41]The respondent made submissions that the traffic offences were of note as the applicant was a foster carer of multiple children between 2002 and 2018 and as such there were concerns that the offences may have occurred whilst children were in the car.
- [42]The applicant attested that the infringement notices were received when he worked and that at no time were any children in his work vehicle. The applicant specified that his wife took the children to school and collected them.
- [43]The respondent has provided submissions that the traffic history is relevant to a person’s eligibility to work with children as it raises concerns about the applicant’s ability to respect rules and boundaries, and whether he is an appropriate person to be entrusted to care for the wellbeing of children and young people in activities regulated by the WWC Act.
In the case of a conviction – the penalty imposed by the court and if 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[32]
- [44]The applicant has not been convicted of any offence as defined by the Act.
Any information about the applicant provided under sections 318, 319, 335, 337, or 338 of the WWC Act[33]
- [45]No information was requested or received pursuant to these sections, given they are not relevant or applicable in this matter.
Anything else relating to the commission, or alleged commission, of the offence that is reasonably considered to be relevant[34]
- [46]The Tribunal considered other matters which is dealt with below.
Section 228(2) of the WWC Act
- [47]As the applicant has “other relevant information”: namely, child protection information, the Tribunal must also have regard t the matters prescribed by section 228(2) of the WWC Act in determining whether an exceptional case exists.
- [48]Following the Tribunal’s Directions allowing either party to apply for a notice to produce, the respondent applied for a notice to produce to the Department under section 63 of the QCAT Act.
- [49]The applicant opposed the use of this material arguing that the information is of little use to the Tribunal. The Tribunal finds that the information is related to the applicant’s role as a foster carer and as such his care of children and is therefore relevant to consider. The Tribunal does note that the information does not provide context and it also is only one version of events. Many persons providing the information were not able to be cross examined and there were matters that remain untested and unsubstantiated. Provided it is given the according weight it is appropriate for consideration.
- [50]
[The] fact that the 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 statement to the police bear on the question whether this is an exceptional case.[36]
- [51]The material provided that during the applicant’s 16 years as a foster carer, he failed to meet the standards of care for children in his care on 4 occasions and was found responsible for causing substantiated hard to a child in his care. The issues of note range from lack of supervision, speaking to children inappropriately and allegations that sexual offences were committed by foster children against other foster children whilst in the applicant’s care. Some of the reports are far more trivial than others. IN addition to substantiated findings there were investigations into other concerns including allegations of neglect, neglect and emotional harm, breach of confidentiality, and allowing non-permitted foster children and other adults to remain overnight at his home.
- [52]The applicant was cross-examined on many matters. Given the duration of time that has passed there were matters the applicant could not recall. Other matters the applicant gave inconsistent versions compared to earlier account. In many circumstances the applicant was also non-committal and denied circumstances or responsibility.
- [53]The material produced is a record of concerns and event occurring over a 16 year period. It provides an account of a long period of actions pf the applicant.
- [54]The tribunal accepts the information provided is relevant to the applicant’s employment of carrying on a business that may involve children – i.e. his role as foster carer and blue card holder.
Additional submissions of the applicant
- [55]On 9 September 2022, after the hearing, the Applicant filed submissions in reply to the Respondent’s submission filed on 26 August 2022 – the “Reply”.
- [56]The Reply made submissions about new legal arguments that had not previously been raised in the Applicant’s submissions filed in the matter (initial submissions).[37]
- [57]By directions dated 19 September 2022, the Tribunal ordered that the Respondent could file submissions in response to the Applicant’s submission about the new legal arguments raised in the Reply.
- [58]In the Reply the Applicant seeks the following order, in addition to the orders sought in its initial submissions:[38]
- “An order under section 60 that:
- a.The Applicant’s case is not an exceptional one because:
- i.The Respondent denied the Applicant procedural fairness;
- ii.A conventional estopped supplied to the Respondent’s decision of 17 August 2022 to issue the Applicant with a negative notice; and
- iii.Any other equitable outcome the Tribunal considers appropriate.”
- [59]Section 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) authorises the Tribunal to make a declaration in a proceeding.
- [60]It is assumed that the Applicant is seeking a declaration that the Applicant’s case is not an exceptional one, because he submits:
- The Respondent denied the Applicant procedural fairness.
- Conventional estoppel applies to the Respondent’s decision of 17 August 2022 to issue the Applicant with a negative notice; and
- Any other equitable outcome the Tribunal considers appropriate.
- [61]In support of the declaration the Applicant relies on submission made in respect of:
- The Respondent’s alleged contravention of the common principles of natural justice.
- The Tribunal’s power to make a declaration pursuant to s 60 of the QCAT Act; and
- The application of the doctrine of conventional estoppel to the matter.
- [62]The reply also raises new legal arguments about the interpretation of the phrase “other information” in s 221 of the Working with Children (Risk Management and Screening) Act 2000 (“WWC Act”).
The Tribunal’s power to make a declaration under s 60 of the QCAT Act.
- [63]The Tribunal has the power to make a declaration pursuant to s 60 of the QCAT Act.
- [64]However, s 60(1) of the QCAT Act Provides that the Tribunal may only make declaration about a matter in a proceeding:
- “Instead of making an order it could make about the matter; or
- In addition to an order it could make about the matter.”
- [65]A declaration may be made in circumstances where no other relief is available, and it is appropriate to grant the relief depending on the requirements of justice in a particular case.[39]
- [66]The Applicant seeks the declaration in addition to making the following submission:
“the Respondent’s decision that the Applicant’s case is an exceptional under s 221 (2) of the WWC Act should be set aside and substituted with a decision that the Applicant’s case in not an exceptional one.”[40]
- [67]An order setting aside and substituting its decision is available to the Applicant in this proceeding pursuant to s 24(1)(b) of the QCAT Act.
- [68]If the order setting aside the decision of the Respondent and Substituting a decision that the Applicant’s case is not exceptional is made, the practical effect of that decision is that the Respondent must give the Applicant a working with children clearance (blue card) pursuant to s 22(1) of the WWC Act.
- [69]It is the Tribunal’s position that in those circumstances the declaration sought by the Applicant:
- Will duplicate the relief flowing from the substituted decision that the Applicant’s case is not exceptional; and
- Will not be necessary to achieve justice in the matter. Justice will be achieved by the finding that the Applicant’s case is not exceptional and the substituted decision to that effect.
- [70]For these reasons, the Tribunal determines to refuse to make the declaration sought by the Applicant.
Contravention of the common principles of natural justice
- [71]The issue of whether the Respondent has contravened the common law principles of natural justice during its dealing with the Applicant when assessing his eligibility for a blue card, is irrelevant to the Tribunal’s determination of this proceeding because it is a fresh hearing of the Applicant’s application for a blue card on the merits.[41]
- [72]The Applicant is in effect seeking that the Tribunal engages in a judicial review of the Respondent’s decision.
- [73]In this proceeding the Tribunal:
- Does not have the jurisdiction to perform a judicial review because its jurisdiction is limited to the powers given to it in QCAT Act and WWC Act[42] and those Acts do not grant it that power;
- Is required to make its own decision about whether the Applicant’s case is an exceptional case in the context of s 226 and s 228 of the WWC Act based on the evidence before it; and
- [74]
Conventional estoppel
- [75]The Applicant asserts that the five elements needed to establish a conventional estoppel are present in this case.[45]
- [76]The Tribunal does not support this position, because:
- It is submitted that the Applicant assumed that his blue card in 2018 would be granted, on the basis that he would be automatically entitled to a blue card as he had on every previous renewal of this blue card. The Applicant does not rely on any evidence in the material before the Tribunal in support of the existence of this assumption;
- In the absence of evidence proving the assumption, it is unlikely that one could be inferred, because it is in direct conflict with the statutory framework for the assessment, grant and cancellation of blue cards in the WWC Act, particularly in circumstances where the Respondent:
- (i)Received information that it considered to be a change giving rise to a question of whether it was necessary to cancel the Applicant’s blue card[46] (reassessment process) and commenced that process with the Applicant; and
- (ii)Was required to consider the Applicant’s application seeking to be issued with a blue card[47] and make a decision about the Applicant’s eligibility for the blue card according to the framework set out in WWC Act.
- (i)
- Even on the basis that the assumption could be substantiated through the evidence in this proceeding, the Applicant must also establish that the Respondent adopted that same assumption, that both partied conducted their relationship on that assumption, that each party intended the other to act on that basis and that departure from the assumption will occasion detriment to the Applicant. The Applicant has not adducted or relied on any evidence as proof of these essential matters;
- The is unlikely the respondent adopted that assumption or intended the Respondent to act on that assumption during its dealings with him. Is it submitted that there is no evidence to that effect before the Tribunal;
- The it cannot be said that the parties conducted their relationship on that assumption. In fact, a conclusion that the relationship was conducted on that basis is inconsistent with:
- (i)The Respondent’s statements in letters dated 21 February 2020 and 17 August 2020[48] that put the applicant on notice that his eligibility for a blue card was being assessed according to the WWC Act; and
- (ii)The absence of words to that effect in the Applicant’s letters dated 8 November 2018 and 3 March 2020.[49]
- (i)
- [77]The Applicant must prove that he has so changed his position in the faith of the Respondent’s representation that he would suffer detriment if the estoppel were not enforced.[50] Emotional or psychological detriment will not suffice.[51] The Applicant does not rely on any evidence to demonstrate any detrimental reliance, nor can any be established on the evidence;
Transferability
- [78]The effect of issuing the applicant a blue card is that the applicant is able to work in any child related employment or conduct any child related business, supervised, or unsupervised, regulated by the Act, not just for the purpose for which the applicant that sought the card. If issued with a blue card, the applicant could work with children of any age, gender or variability, in any setting.
- [79]The Tribunal has not power to issue a conditional blue card[52] and once issued, a blue card is unconditional and fully transferrable across all areas of regulated employment and business. There is no ability to impose conditions, limitations, training or supervision in the way that, for example, the Department of Children, Youth Justice and Multicultural Affair can impose on a Certificate of Approval for a foster carer.
Relevant human rights
- [80]There are a number pf completing human rights relevant the decision before the Tribunal. These include the human rights of the applicant. These could include the applicant’s right to privacy and reputation[53] right to take part in public life,[54] right to further vocational education and training[55] and the applicant’s cultural rights.[56] It also includes the human rights of children, specifically the right of every child to “the protection that is needed by the child, and is in the child’s best interests, because of being a child”, as provided for in section 26(2) of the HRA.
- [81]It is the Tribunal’s position that a decision that the applicant’s case is an exceptional case will nevertheless be compatible with human rights. This is because, despite any limit the decisions places on the applicant’s human rights, the decision will be justified by the factors outlined under section 13 of the HRA. The decision will be justified because it will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which is itself a human right.[57]
- [82]Any limitation on the applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC Act that is, the welfare and best interests of children are paramount.
Decision
- [83]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 him to be issued with a blue card.
- [84]Overall, the material, including the applicant’s oral testimony at the hearing indicates that in his capacity as foster carer, the applicant has been assessed and responsible for causing harm or risk of harm to foster children in his care on a number of occasions. The applicant material provides for either a lack of insight of denial of responsibility regarding his actions and how they may have contributed to harm or the potential of harm.
- [85]The Tribunal finds that this case is an exceptional case such that it would not be in the best interest of children and young people for the applicant to be issued with a blue card.
Orders
- [86]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.
- [87]The publication of any contents of any document or thing filed in or produced to the Tribunal and any evidence given to the Tribunal by any witness is prohibited to the extent that it could lead to the identity of the applicant or nay member of the applicant’s family or any non-party to the proceedings.
Footnotes
[1] The applicant was previously issued with blue cards in 2006, 208, 2010, 2013 and 2016. IN September 2018, a re-assessment process was triggered following a change in the applicant’s relevant information, however the applicant’s blue card expired before the re-assessment process could be finalised.
[2] WWC Act, section 6.
[3] WWC Act, section 360.
[4] WWC Act, section 5(b); WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17].
[5] QCAT Act, section 20(1).
[6] WWC Act, section 353.
[7] WWC Act, s 221.
[8] QCAT Act, s 19(c).
[9] QCAT Act, s 20(2).
[10] DM v Director-General, Department of Justice and Attorney General [2022] QCAT 199, [10] (citing QCAT Act, s 21(3).
[11] WWC Act does not contain a subsection 3(e).
[12] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 (citing Kent v Wilson [2000] VSC 98 [22]) emphasis added.
[13] Per Phillippedes J. in Commission for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 applying s 102(5) of the CCYPCG Act (prior to amendments and renumbering of the CCYPCG Act in 2010).
[14] Commissioner for Children and Young People and Child Guardian v Maher and Anor [204] QCA 492 citing with authority the test prescribed in Briginshaw v Brigjnshaw and Anor (1938) 60 CLR 336.
[15] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.
[16] WWC Act s 6(a).
[17] SSJ v Director General, Department of Justice and Attorney General [2020] QCAT (unpublished decision, 17 June 2020), 109.
[18] WWC Act, ss 6(a), 360.
[19] Per Philippides J. in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 applying s 102(5) of the CCYPCQ Act.
[20] Human Rights Act 2019, s 58(1)(b).
[21] WWC Act, sch 7.
[22] DL v Director-General, Department of Justice of Attorney General [2021] QCAT 61.
[23] DEF v Director General, Department of Justice and Attorney General [2022] QCAT 127.
[24] DL v Director-General, Department of Justice of Attorney General [2021] QCAT 61, [49]
[25] DEF v Director General, Department of Justice and Attorney General [2022] QCAT 127, [4].
[26] WWC Act, s 226(2)(a)(i).
[27] WWC Act, sch7.
[28] WWC Act, s 226(2)(a)(ii).
[29] WWC Act, sch2.
[30] WWC Act, sch 4.
[31] WWC Act, s 226(2)(a)(iii).
[32] WWC Act, s 226(2)(a)(v).
[33] WWC Act, s 226(2)(b)-(d).
[34] WWC Act, s 226(2)(e).
[35] Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.
[36] Ibid, at [32].
[37] Filed on 12 August 2022.
1 Filed on 12 August 2022.
[38] Reply at [152] and initial submissions at [120] – [123].
[39] Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor [2019] QCAT 342 at [34] citing John Fairfax & Sons Ltd v Police Tribunal (NSW) 5 NSWLR 465 at 470.
[40] Initial submissions at [122].
[41] QCAT Act, s 20(1).
[42] QCAT Act, s 9(1).
[43] DVL v Director-General, Department of Justice and Attorney General [2022] QCAT 33 at [72] to [76].
[44] Queensland Civil and Administrative Tribunal Act 2009 s 4(d).
[45] Reply at [145].
[46] Pursuant to the repealed s 237 of the Working with Children (Risk Management and Screening) Act 2000 in force in September 2018 (current 1 May 2018).
[47] The Applicant was required to make an application for a blue card because his blue card expired before the reassessment process could be finalised.
[48] Exhibit BCS at p17-18 and p31-32.
[49] Exhibit BCS at p25-30.
[50] Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 217.
[51] Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 218.
[52] RPG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 331, [27].
[53] HRA, section 21.
[54] HRA, section 23.
[55] HRA, section 36(2).
[56] HRA, section 27-28.
[57] HRA, section 13(2)(b).