KLW v Director General Department of Justice and Attorney-General
[2023] QCAT 446
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- KLW v Director General Department of Justice and Attorney-General[2023] QCAT 446
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KLW v Director General Department of Justice and Attorney-General[2023] QCAT 446
KLW v Director General Department of Justice and Attorney-General[2023] QCAT 446
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | KLW v Director General Department of Justice and Attorney-General [2023] QCAT 446 |
PARTIES: | KLW (applicant) v Director General Department of justice and attorney-general (respondent) |
APPLICATION NO: | CML012-22 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 31 October 2023 |
HEARING DATE: | 6 March 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Davies |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to refuse an application to cancel 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 refuse to cancel a negative notice – where applicant has convictions and charges and other relevant information – where the offences were not serious or disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – 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 Human Rights Act 2019 (Qld), s 25, s 26, s 28, s 31, s 38 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 63, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 172, s 221, s 226, s 353, s 360 Briginshaw v Briginshaw (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 Maher [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 DAN v Director General, Department of Justice and Attorney-General [2021] QCAT 229 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6 ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102 |
APPEARANCES & REPRESENTATION: | |
Applicant: | S Wills, Solicitor, Aboriginal and Torres Strait Islander Legal Service, Ipswich |
Respondent: | A Sanders, Legal Officer, Department of Justice and Attorney-General |
REASONS FOR DECISION
Introduction
- [1]In or about early 2018 the Applicant (KLW) applied for the issue of a working with children clearance (also referred to as a blue card). The issue of a blue card is governed by the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act). After consideration of that application the Director of Blue Card Services came to the view that, on the information before her, she was not satisfied that the issue of a blue card to KLW would be in the best interests of children and young people. Therefore, on 1 June 2018, KLW was issued with a negative notice.
- [2]Subsequently Blue Card Services received a further application from KLW. By this further application KLW sought the cancellation of the 1 June 2018 negative notice. Upon receipt of this further application Blue Card Services undertook a reassessment of KLW’s eligibility to hold a blue card. As a result of that reassessment, on 17 December 2021, the Director of Blue Card Services made a decision to refuse KLW’s application to cancel her negative notice. This decision (Reassessment Decision) is the decision that is relevant to this proceeding.
- [3]KLW was dissatisfied with the Reassessment Decision and, on 11 January 2022, instituted an application to review that decision.
- [4]In essence, KLW contends that her case is not ‘exceptional’ and, as a result, she should be able to hold a blue card.
- [5]For the reasons set out below, I consider that KLW’s situation is not exceptional.
Legislative framework and role of Tribunal
- [6]The principal legislation, relevant to a review by this Tribunal of the Reassessment Decision are the WWC Act – under which the Reassessment Decision was made – and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) – under which the Tribunal exercises its review jurisdiction.
- [7]The object of the WWC Act is promote and protect the rights, interests, and wellbeing of children and young people in Queensland. It does this by a scheme requiring the development and implementation of risk management strategies and for the screening of persons.[1]
- [8]The Reassessment Decision is a reviewable decision under the WWC Act. Specifically, it is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act.
- [9]The purpose of a review by this Tribunal of the Reassessment Decision is to produce the correct and preferable decision.[2] In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.[3] That is to say, this Tribunal is required to determine whether an exceptional case exists after evaluating all the available evidence before it without any party bearing the onus of proof that an exceptional case exists.[4] In this matter, there was material before the Tribunal that was not before Blue Card Services when the Reassessment Decision was made.
- [10]Further, in deciding this matter, this Tribunal has all the functions of the original decision maker. In exercising the functions of the original decision maker, this Tribunal is, like the original decision maker, guided by the principles set out in the WWC Act.
- [11]Those principles are, in summary, that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[5]
- [12]The WWC Act provides, as a starting point, that a person in the position of the KLW should be allowed to hold a blue card unless that person’s situation constitutes an exceptional case.
- [13]Thus, in conducting this review of the Reassessment Decision, the principal issue for determination is whether an ‘exceptional case’ exists. That is, whether KLW’s situation is such that it would not be in the best of children for a positive notice to be issued.[6]
- [14]The term ‘exceptional case’ is not specifically defined in the WWC Act. As to what constitutes an exceptional case is a question of fact and degree having regard to the intent and purpose of the legislation. Further, it is a term of common use in everyday language and the application of the concept of exceptional case should be unhampered by any special meaning or interpretation.[7]
- [15]In determining whether the KLW’s circumstances constitute an exceptional case it is necessary, under the WWC Act, to consider:
- The principles for the administration of the WWC Act discussed above.
- The matters that the WWC Act mandates must be considered. Relevantly, these matters are set out in ss 226(2) and 228(2) of the WWC Act.
- Any other matters that are relevant to the decision.[8]
- [16]Further, in coming to a decision this Tribunal must consider a human right relevant to the decision.[9] This is because in a review such as this, the Tribunal is a ‘public entity’ and is therefore required to comply with s 58 of the Human Rights Act 2019 (Qld) (HRA). Subject to some presently irrelevant exceptions, that section prohibits a public entity from making a decision that is not compatible with human rights or without considering human rights that are relevant to the decision. The human rights that are relevant to KLW include the right to privacy and reputation[10] and the right to a fair hearing[11] together with her cultural rights.[12] The human rights of children are also relevant to this review. Those rights relevantly are that every child has the right to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child.’[13]
Evidence
- [17]What evidence was before the Tribunal? KLW’s documentary evidence in support of her application consisted of her statement in the form of an affidavit,[14] her personal history,[15] and three witness statements (or letters of support)[16] of witnesses that gave oral evidence for KLW. In this context it is appropriate to note that KLW’s affidavit also attached letters of support that from two individuals who did not give oral evidence. That is, these individuals were not able to be examined on the matters addressed in their letters of support. This documentary and oral evidence was supported by two sets of written submissions.[17]
- [18]The written material put before the Tribunal by Blue Card Services consisted of a document setting out the reasons for the Reassessment Decision (the Reasons document[18]) and documents accompanying the Reasons document.[19] These accompanying documents included KLW’s criminal history and related information from the Queensland Police Service, a prosecution report, and sentencing remarks. In addition, Blue Card Services put before the Tribunal documents obtained pursuant to notices to produce.[20] This documentary material (the notice to produce documents) consisted of material obtained from the Magistrates Court regarding domestic violence applications and material obtained from the Queensland Department of Children, Youth Justice and Multicultural Affairs. These notice to produce documents were of particular relevance to the s 228 (of the WWC Act) matters that are addressed further below. The documents submitted to the Tribunal by Blue Card Services were supported by a set of comprehensive written submissions.
Do KLW’s circumstances constitute an ‘exceptional case’?
- [19]Paragraph [15] above sets out a framework for considering if KLW’s case is exceptional.
- [20]As to the principles for the administration of the WWC Act, these are summarised at paragraph [11] above.
- [21]With these principles providing guidance, it is appropriate to turn to the matters that the WWC Act, in ss 226 and 228, mandates that the Tribunal must have regard when deciding if an exceptional case exists.
s 226 matters
- [22]The relevant s 226 matters are, in summary:
- Whether the offences are convictions or charges;
- Whether the offences are serious or disqualifying offence;
- When the offences were committed or alleged to have been committed;
- The nature of the offences and their relevance to employment or carrying on a business that involves or may involve children;
- In the case of a conviction – the penalty imposed by the court;
- Anything else relevant to the commission or alleged commission of the offences that the Tribunal reasonably considers to be relevant to an assessment of KLW.
- [23]It is not in dispute that KLW has been convicted in the Magistrates Court of a total of fourteen offences. These convictions commence in 1997 with a conviction for making a false statement and obtaining a benefit only part payable. The last conviction in evidence is a conviction for stealing as a clerk or servant in 2015. Between those two convictions, KLW has convictions for obtaining a financial advantage and knowingly obtaining a payment not payable. What unites the convictions is that they all involve dishonesty. In addition, KLW has finalised charges (not convictions) for stealing and fraud.
- [24]It is also not in dispute that the offences are neither serious nor disqualifying offences as those terms are defined under the WWC Act.
- [25]In respect of her offending KLW has received a range of penalties, including terms of imprisonment.
- [26]The mandatory matters outlined in the preceding three paragraphs supply context for consideration of what is the central s 226 issue, namely the nature of the offences and their relevance to working with children.
- [27]Blue Card Services submit that KLW’s offending is relevant to, and reflects adversely on, an evaluation of her ability to work with children and young people. The basis for this submission has three pillars. They are that the offending raises questions about KLW’s restraint and self-control, that the prolonged nature of the offending raises questions about her respect for the law and lawful behaviour together with her ability to present as a positive role model and, finally, that the offending raises questions about her ability to prioritise the rights, interests and well-being of others, including children, over her own interests.
- [28]In respect of the relevance of KLW’s offending to working with children, the submissions made on her behalf highlighted that she did not, in written or oral evidence, seek to minimise or downplay her conduct and admitted that she was ‘stupid’. I am of the view that KLW was open and candid about her offending behaviour and expressed genuine remorse for her conduct.
- [29]Other matters emphasised by KLW’s legal representative to provide context to her offending is that her misappropriated funds had, for the most part, been used to assist her family and that she made full admissions to the police. In addition, it is submitted on behalf of KLW that her conduct that gave rise to her most recent charges occurred about 9 years ago. It is also of relevance that her offending did not directly impact on the welfare of children.
s 228 matters
- [30]The notice to produce documents constitute ‘other relevant information’ for the purposes of s 228 of the WWC Act. The notice to produce documents consist of domestic violence information about KLW and ‘other information’, essentially child protection information, relating to her. These documents contain information that may be relevant to deciding whether it would be in the best interests of children for her to be issued with a working with children clearance. KLW was examined about aspects of these notice to produce documents when she gave oral evidence.
- [31]It is necessary to assess evidence before the Tribunal, both documentary and oral (the s 228 evidence) by having regard to the matters set out in s 228(2) insofar as they are relevant to KWL.
- [32]Blue Card Services in its post hearing written submissions helpfully set out a detailed summary of the s 228 evidence. This summary assists in an assessment of this evidence so that the circumstances and gravity of the behaviour or conduct that is the subject of the information can be assessed.
- [33]The s 228 material covers the period of over 22 years from in or about November 1998 to in or about February 2021. In assessing the s 228 matters certain themes are apparent. Firstly, despite coming to the attention of Queensland Government Department responsible for child safety on a number of occasions over the period in question, the general tenor of the documents produced by the Department was that there was little evidence of harm or neglect, that the information received or ascertained on investigation did not meet the threshold for a child protection notification or there was no information to indicate that KLW had made inappropriate parenting decisions. Secondly, despite the difficulties presented by redactions in the notice to produce material, it seems that much of the reporting of KLW to the Department responsible for child safety seems to be actuated by malice. Indeed, one incident referred to in the s 228 evidence involved an assault on both KLW and on a child relative that she was parenting. This assault resulted in injury to both the child and KLW. As a result of these assaults, criminal charges were brought against both a close male relative of KWL and his then partner.
- [34]Both s 226 and s 228 of the WWC Act direct consideration not only to certain specific matters but also to anything else that the decision maker (here the Tribunal) reasonably believes to be relevant to an assessment of KLW. This remit to consider ‘anything else’ is supported by authority for the proposition that the Tribunal is not confined to considering only those matters set out in ss 226 and 228 of the WWC Act.[21] Nonetheless, the legislative framework is such that any other matters considered must, in my view, be related to the issue of whether or not it would be in the best interests of children for KLW to be issued with a positive notice.
Other relevant matters
- [35]The three witnesses who gave evidence for KLW addressed a range of relevant ‘anything else’ matters. These witnesses had or have a professional relationship with KLW. All three witnesses gave evidence that KLW was open and honest about her offending. Further they all commented on the care that she provides to a child in her custody. This evidence was persuasive coming, as it did, from a person who co-ordinates NDIS care for the child in KLW’s custody, a health professional who provides assistance to that child, and from a domestic violence counsellor. All three witnesses had no hesitation in endorsing the proposition that KWL would be, in their view a suitable person to hold a blue card.
- [36]This was also the tenor of the two letters of support attached to KLW’s affidavit. These witnesses did not give oral evidence and therefore, although I take note of their support, I give less weight to their evidence.
Conclusion
- [37]The paramount consideration under the WWC Act is the welfare and best interests of children. In this context it is apposite to observe that any hardship or prejudice to KLW is irrelevant in deciding this proceeding.[22]
- [38]In assessing the evidence, I have come to the view that KLW’s case is not exceptional. This conclusion is based on three main matters. Firstly, although KLW’s offending was extensive and covered a long period of time it is now about nine years since her last offending. I consider that KLW is remorseful and has insight into the behaviour that gave rise to her convictions. It seems that her incarceration has had the desired effect of deterrence and rehabilitation. Secondly, her care for the high needs child who is related to her and that she has custody of because of a court ruling, demonstrates to my satisfaction that she understands the needs and requirements of looking after children. Thirdly, I consider that KLW understands the assistance that can be provided to her by professional service providers. For example, KLW has engaged with domestic violence services and seems to have benefited as a result.
- [39]I consider that KLW’s case is not exceptional.
Non-publication order
- [40]The Tribunal has the power to make an order prohibiting the publication of certain information including information that may enable a person to be identified. A non-publication order may be made if the Tribunal considers that such an order is necessary in the interests of justice.[23] After hearing submissions from both parties in support of a non-publication order, I agree that such an order is appropriate. The principal reason that I have come to that view are the identification of KLW could lead to the identification of a child that she has care and custody of and perhaps other children who have figured in the evidence before the Tribunal.
Footnotes
[1] WWC Act s 5.
[2] QCAT Act s 20(1).
[3] QCAT Act s 20(2).
[4] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[5] WWC Act ss 6 and 360.
[6] WWC Act s 221(2).
[7] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]–[35].
[8] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
[9] HRA, s 58(1)(b).
[10] HRA, s 25.
[11] HRA, s 31.
[12] HRA, s 28. KLW identifies as Aboriginal on her father’s side (Exhibit 3, paragraph 1).
[13] HRA, s 26.
[14] Exhibit 3.
[15] Exhibit 4.
[16] Exhibits 5, 6 and 7.
[17] A set of post hearing submissions received by QCAT on 17 March 2023 and a further set of submissions, being in response to the written submissions of Blue Card Services were received by QCAT on 21 April 2023.
[18] The ‘Reasons’ document is dated 17 December 2021.
[19] Exhibit 1.
[20] Exhibit 2. Directions were made on 26 July and 14 September 2022 pursuant to s 63 of the QCAT Act. That section invests the Tribunal with power to obtain documents from third parties.
[21] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
[22] Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142, [52].
[23] QCAT Act, s 66.