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TLZ v Director-General, Department of Justice and Attorney General[2023] QCAT 448

TLZ v Director-General, Department of Justice and Attorney General[2023] QCAT 448

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

TLZ v Director-General, Department of Justice and Attorney General [2023] QCAT 448

PARTIES:

TLZ

(applicant)

v

Director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML319-21

MATTER TYPE:

Childrens matters

DELIVERED ON:

17 November 2023

HEARING DATE:

21 July 2023

HEARD AT:

Brisbane

DECISION OF:

Member Favell

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is not an exceptional case within the meaning of section 225 of the Working with Children (Workplace Screening and Risk Assessment) Act 2000 is set aside and substituted with the decision that the Applicant’s case is an exceptional case.

CATCHWORDS:

CHILDRENS MATTERS – BLUE CARD – where the applicant taught piano to children and held a blue card for 3 years – where the applicant sought another blue card in 2020 and was issued with a negative notice.

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

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

Re TAA [2006] QCST 11

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms L Hailstones advocacy officer Blue card services DJAG

REASONS FOR DECISION

Background

  1. [1]
    By a letter dated 26 August 2021 the applicant was informed that her application for a blue card for child related employment made on 28 August 2020 resulted in a negative notice.
  2. [2]
    A negative notice means that the applicant is not able to be issued with a blue card.
  3. [3]
    The applicant seeks a review of that decision.
  4. [4]
    The applicant does not have a conviction for a “serious offence” or a “disqualifying offence” as those terms are used in the legislation. Accordingly, she must be issued with a positive notice unless the Tribunal is satisfied that this is an exceptional case which would harm the best interests of the children for the applicant to be issued with a positive notice.
  5. [5]
    In considering the application, the paramount consideration, for the tribunal, is the welfare and best interests of the children, as every child is entitled to be cared for in a way that protects the child from harm and promotes the Child’s well-being.
  6. [6]
    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. It is 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.
  7. [7]
    In conducting the review, the tribunal is acting as a public entity, as that term is described in the Human Rights Act 2019 (Qld) (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 by the HRA.
  8. [8]
    An in-person hearing was conducted and the applicant attended and provided evidence in support of her application. I have also the benefit of the written material filed by the parties and submissions filed in accordance with directions made by me at the end of the Hearing.
  9. [9]
    The end of the hearing I asked that the parties give particular attention to section 221 of the Working With Children (Risk Management and Screening) Act 2000 (Qld).
  10. [10]
    I have had particular regard to that section, the facts of the matter, as stated herein, the reason for the decision made by the department and the submissions made.
  11. [11]
    Importantly, I have had regard to the nature of the Work, the applicant intends to be engaged in and has in the past being engaged in as well as the nature of her appearances before the Magistrates Court.
  12. [12]
    In my view, there is a discrepancy between the charges laid against the applicant and dealt with in the way I set out below, and the work, for which the applicant requires a blue card.
  13. [13]
    The applicant has 45 years of specialising in teaching piano/music to 4-8 year old children, and at the peak was teaching 360 students per week.
  14. [14]
    At the relevant time the applicant was 60 years of age.
  15. [15]
    She needs a blue card “to exist” and to complete her studies and continue with her volunteering work.
  16. [16]
    The reasons given for the decision correctly set out the object of the Act namely to promote and protect the rights, interests, and wellbeing of children in Queensland.[1]
  17. [17]
    They also correctly set out the focus of the Act namely the protection of children, not to impose additional punishment on a person “who has police or disciplinary information”.[2]
  18. [18]
    The reasons state “The applicant has been convicted of an offence other than a serious offence as defined in the Act”.
  19. [19]
    The reasons correctly state that section 221 of the Act provides that working with children, clearance must be issued unless it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a working with children clearance.
  20. [20]
    The Act does not define “exceptional case”. It is said to be a “a matter of discretion”.
  21. [21]
    That does not mean the discretion can be exercised without proper consideration taking into account all of the relevant facts.
  22. [22]
    The circumstances of this case must be considered and applied to determine the question as a matter of fact and degree.[3]
  23. [23]
    Two police allegations were considered by the decision maker.
  24. [24]
    One in 2019 had no evidence offered.
  25. [25]
    One in 2020 for fraud did not result in a conviction being recorded but community service of 240 hours to was ordered to be completed within 1 year and compensation of $9620 was ordered.
  26. [26]
    Those orders were complied with.
  27. [27]
    The decision refers to “further information” “obtained in relation to the following offences”. The “information” was summarised from “police brief of facts”.
  28. [28]
    In respect of the fraud charge-dishonestly induces delivery of property stealing by clerks and servants the summary of relevant facts relied on was as follows:
    1. On 30 September 2014 the complainant business was founded. It received a grant from the gambling community benefit fund in June 2015 for $9620. The grant was for the purchase of safety equipment to assist a three-year-old child and his parents with his disability. The office of liquor and gambling regulation and community benefit funds unit administer the gambling community benefit fund.
    2. She was the treasurer and registered accountable officer for the complaint in business.
    3. The applicant advised that due to a fraudulent transaction on her personal account, the bank froze the complainant's business account. It was believed that the bank had seized the grant funds.
    4. The applicant advised that she would like to return the funds but was unable to do so at that time as the complainant business was no longer in operation and she was unemployed.
    5. She was advised to email the Office of Liquor and Gambling Regulation to advise that the complainant business had closed and they would like to return the funds.
    6. On 29 March 2017 the Office of Liquor and Gambling Regulation contacted the applicant and advised that no correspondence had been received.
    7. The applicant reiterated her previous conversation adding the filing equipment had not been yet purchased.
    8. The bank had closed both the complainant business and her personal accounts due to the fraudulent transaction. She wanted to enter into a payment plan although she was still unemployed.
    9. On 21 March 2018 the Office of Liquor and Gambling Regulation made a complaint to the police and the police obtained documentation including the grant application. The application outlined that the applicant was the applicant person for the grant and was nominated as the treasurer of the complainant business.
    10. The grant was for safety equipment to assist a young family with their three year old disabled child.
    11. On 19 January 2015 a bank account was opened and on 1 May 2015 the opening balance was $40.
    12. The transactions were as follows:
  1. opening balance $40
  2. 25 June 2015 $9620 credited to the account;
  3. That transaction was named “OLGR grants”.
  4. On 21 July 2015 $2000 was transferred to another account. The transaction was named “rent”.
  5. On 15 July 2015 $1350 was transferred to another account and the transition was named “TLZ” 1039.
  6. On 17 July 2015 $1500 was withdrawn from a branch.
  7. On 22 July 2015, $1500 was transferred to another account. This transaction was named “Sav”.
  8. On 29 July 2015 $1300 was transferred to another account. This account was named “rent”. Police conducted checks in relation to the bank transactions. They identified that the banking credits had been transferred into another county namely the applicant’s account. Upon the transaction from 15 July 2015 entering the applicant’s account it was labelled. The place identified work occurred on 15 July 2015 at the applicant's previous address. A receipt for $1350 addressed to the applicant was obtained.
  9. The bank confirmed that a hold had never been placed on the complainant business account. On 7 August 2019 at about 11:40 AM the applicant declined the offer to participate in an electronic record of interview.
  1. [29]
    In relation to the stealing by clerks and servants charge, the prosecutor discontinued the proceedings against the applicant after offering no evidence in relation to the charge and she was discharged accordingly. In relation to the fraud charge dishonestly inducing delivery of property the applicant was convicted and the orders set out above when made. No conviction was recorded.
  2. [30]
    In her application for a blue card the applicant had her legal representatives make written submissions which are set out in the reasons.
  3. [31]
    In the chronology set out in the reasons the submission was made that the charge of stealing as a servant could not be made out and the investigating officers had charged the incorrect charge.
  4. [32]
    It is not necessary to set out all of the submissions that were made but I note that on the second charge finalised in the Ipswich Magistrates Court, the applicant entered a plea of guilty. I note the sentencing.
  5. [33]
    The real issue here is whether or not there was an exceptional case in which it would not be in the best interests of children.
  6. [34]
    The applicant’s solicitors made submissions on that question, they are set out in the reasons.
  7. [35]
    The factual matrix is set out above.
  8. [36]
    I note in those submissions that it is said that the grant was issued to purchase lifting equipment for the applicant’s handicapped grandson. The grant was not utilised for that purpose. It is said that the offending holds little to no relevance to the applicant’s application for a blue card for the purpose of teaching music to children.
  9. [37]
    I agree with that submission.
  10. [38]
    I've had regard to the oral submissions set out in the reasons and the references that are also set out in the reasons as well as what is said to be other material.
  11. [39]
    I have also had regard to that part of the reasons which sets out the consideration of factors relating to criminal history information. In particular the reasons seem to assert that the applicant has a conviction for fraud. I think that that is a mistaken classification of what happened.
  12. [40]
    In that part of the reasons which deal with when the offence was committed or is alleged to have been committed, it is said that the applicant has a conviction for an offence of dishonesty. I think that is a mischaracterisation.
  13. [41]
    The Respondent also contends it is concerned that the applicant obtained funds from a community benefit funding programme as the treasurer and registered accountable officer of a not for profit that she established. It is said that the applicant's offending is adverse to her assessment as children ought to have role modelled for them values such as honesty integrity and respect for the law.
  14. [42]
    Whilst the last statement is undoubtedly so I do not think that it is a proper application to the real question here.

Discussion

  1. [43]
    The applicant has a conviction for an offence of dishonesty recorded in a criminal history raising concerns as whether she is appropriate to work with or interact with children in activities regulated by the Act. I do not accept that it is a correct statement to say that she has a conviction for offensive dishonesty recorded in her criminal history in fact the material shows the opposite in that no conviction was recorded.
  2. [44]
    In the reasons it appears that the person deciding the application required the applicant to demonstrate insight into the seriousness of her offending or its relevance of her offending in assessment of her eligibility to engage in child related regulated employment.
  3. [45]
    To support that proposition the decider cites Re TAA [2006] QCST 11 (26 June 2006).
  4. [46]
    I do not accept that the applicant has the onus as stated.
  5. [47]
    Further in my view the stated passage from the cited case is concerning consequences which on the facts of this matter are quite different.
  6. [48]
    I must issue a negative notice if I am aware of relevant information, and I am satisfied. 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.[4]
  7. [49]
    I am not so satisfied.
  8. [50]
    In my view, taking all of the matters and circumstances set out above the circumstances here do not require a negative evaluation.
  9. [51]
    I order that the applicant be provided with a positive notice, and therefore a blue card.

Footnotes

[1]  Sections 5 and 6 of the Act.

[2]  Second reading speech Commission and young people Bill page 3391.

[3] Commissioner for Children and young People and Child Guardian v Maher & Anor [2004] QCA 492.

[4] DVL v Department of Justice and Attorney General [2023] QCATA 52: TA v DJAG [2023]QCAT 342: DJAG v PML [2021] QCATA 51.

Close

Editorial Notes

  • Published Case Name:

    TLZ v Director-General, Department of Justice and Attorney General

  • Shortened Case Name:

    TLZ v Director-General, Department of Justice and Attorney General

  • MNC:

    [2023] QCAT 448

  • Court:

    QCAT

  • Judge(s):

    Member Favell

  • Date:

    17 Nov 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
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
1 citation
Jump To
Cite 1 - [2004] QCA 492
Director-General, Department of Justice and Attorney-General v PML [2021] QCATA 51
1 citation
Jump To
Cite 1 - [2021] QCATA 51
DVL v Department of Justice and Attorney-General [2023] QCATA 52
1 citation
Jump To
Cite 1 - [2023] QCATA 52
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
TA v Director-General Department of Justice and Attorney-General [2023] QCAT 342
1 citation
Jump To
Cite 1 - [2023] QCAT 342

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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