JGD v Director-General Department of Justice and
Attorney-General
[2024] QCAT 164
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
- JGD v Director-General Department of Justice and Attorney-General[2024] QCAT 164
- Add to List
JGD v Director-General Department of Justice and Attorney-General[2024] QCAT 164
JGD v Director-General Department of Justice and Attorney-General[2024] QCAT 164
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | JGD v Director-General Department of Justice and Attorney-General [2024] QCAT 164 |
PARTIES: | JGD (applicant) v DIRECTOR-GENERAL DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) |
APPLICATION NO/S: | CML346-19 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 17 April 2024 |
HEARING DATE: | 7 September 2023 |
HEARD AT: | Cairns |
DECISION OF: | Member Pearce |
ORDERS: | The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is ‘exceptional’ within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. |
CATCHWORDS: | 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 Child Protection Reform and Other Legislation Amendment Act 2022 (Qld) Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) Disability Services and Other Legislation (Worker Screening) Amendment Act 2020 (Qld) Human Rights Act 2019 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Working with Children (Risk Management and Screening) Act 2000 (Qld) Briginshaw v Briginshaw and Anor (1938) 60 CLR 336 CNL v Director-General, Department of Justice and Attorney-General [2017] QCAT 294 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commissioner for Young People and Child Guardian v Maher & Anor [2004] QCA 592 Chief Executive Officer, Public Safety Business Agency v Masri [2015] QCATA 86 Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Director-General, Department of Justice and Attorney-General v PML [2021] QCATA 51 IHI v Director-General, Department of Justice and Attorney General [2021] QCAT 206 KAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 457 Re TAA [2006] QCST 11 SSJ v Director General, Department of Justice and Attorney General [2020] QCAT 252 (unpublished decision, 17 June 2020) WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190 |
APPEARANCES & REPRESENTATION: | |
Applicant: | JDG, Self-represented |
Respondent: | McNeill, P, Blue Card Services, Representing Director-General Department of Justice and Attorney-General |
REASONS FOR DECISION
Background
- [1]JDG (‘the Applicant’) has applied for a review of a reviewable decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
- [2]On 13 June 2012 the Applicant was issued with a working with children clearance (‘blue card’).
- [3]On 18 January 2018 the Applicant applied for a further blue card.
- [4]The Respondent proposed to issue the Applicant with a negative notice and so invited the Applicant to make submissions about whether or not there was an ‘exceptional case’ for the Applicant.
- [5]On 08 August 2019, after assessing the Applicant’s eligibility, the Respondent issued the Applicant a negative notice under the WWC Act.
- [6]On 11 September 2019 the Applicant filed an application in 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 interests of children for the Applicant to hold a blue card.
- [7]On 03 February 2020, following a compulsory conference, the Tribunal issued Directions in relation to the progress of the Applicant’s matter toward a hearing. Direction one (1) of the Tribunal's Directions dated 03 February 2020 directed the Applicant to file all material upon which he intends to rely on at the hearing, including any health reports by a psychologist or psychiatrist. Direction two (2) of the Tribunal's Directions dated 03 February 2020 provided that if the Applicant’s materials were to include a health report then the health report must consider certain factors outlined in the Directions.
- [8]This matter was first listed for hearing on 12 November 2021 in Cairns. On 04 November 2021 the Applicant sought to vacate the hearing listed on 12 November 2021 because of the inability of medical experts to attend.[1] The Applicant’s application to vacate the hearing in this matter was heard on 12 November 2021 prior to the commencement of the hearing. The Respondent noted that medical evidence was critical in this matter and did not oppose the hearing being vacated. The hearing was vacated and re-listed to occur on 03 February 2022 and 04 February 2022.
- [9]On 12 November 2021 the Tribunal issued Directions in this matter.[2] Direction four (4) of the Tribunal’s Directions dated 12 November 2021 recommended that the Applicant obtain an up-to-date report from an independent registered psychologist or psychiatrist and file same by 20 January 2022. Directions five (5) and six (6) of the Tribunal’s Directions dated 21 November 2021 provided certain outlined factors that the report should consider in the event that a report was sought.
- [10]On 18 January 2022 the Applicant sought that the hearing listed on 03 February 2022 and 04 February 2022 be vacated. The Applicant cited difficulties arranging to see a psychologist and receiving leave entitlement as a result of the Coronavirus pandemic.[3] The Applicant stated: ‘I believe a current report by a psychologist to be essential in informing both the Tribunal and Blue Card Services’ and ‘I feel that delaying the hearing... will facilitate all involved with accurate and up to date information on my mental health, which appears to be the primary issue at hand.’
- [11]On 18 January 2022 the Respondent advised the Tribunal and the Applicant that in light of the Tribunal Directions recommending that the Applicant obtain an updated health report from a psychologist or a psychiatrist, and despite the significant amount of time that the Applicant’s application had been ongoing, the Respondent would not object to the Applicant’s application to vacate the hearing listed on 03 February 2022 and 04 February 2022.[4]
- [12]On 24 January 2022 the Applicant filed an application for miscellaneous matters seeking to vacate the hearing listed on 03 February 2022 and 04 February 2022. The Applicant’s formal application to vacate the hearing stated that the dates should be vacated ‘to facilitate the production of a psychological report as to the Applicant’s suitability for working with children’, and that ‘a date [is] to be set in the future once the psychological report is produced and filed’. The Applicant further noted that he had ‘made significant effort to obtain a psychological report as per recommendations made at the last mention’. The Applicant referred to the coronavirus pandemic and his difficulties with leave entitlements, and also that ‘this report is clearly an important element to the matter moving forward’.[5]
- [13]On 27 January 2022 the Tribunal issued Directions in this matter. Direction one (1) of the Tribunal’s Directions dated 27 January 2022 vacated the hearing listed 03 February 2022 and 04 February 2022.
- [14]On 21 April 2022 the Applicant emailed the Tribunal and the Respondent and noted that he ‘had a few sessions [with a psychologist] and the psychologist is happy to provide a letter of recommendation and has expressed that I am insightful etcetera’. The Applicant referred to explanations for not filing an up-to-date health report.[6]
- [15]On 26 September 2022 the Applicant emailed the Tribunal and the Respondent and referred to explanations for his not filing a health report and sought further time to file such a report.
- [16]On 19 July 2023 the Tribunal listed the hearing of this matter for 07 September 2023.
- [17]On 07 September 2023 the hearing of this matter proceeded. The Applicant did not call any witnesses on his behalf. The Applicant did not file an up-to-date health report, or, indeed, any up-to-date medical information at all.
The Legal Framework
- [18]The principle 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.[7] A child-related employment decision must be reviewed under the principle that the welfare and best interests of the child are paramount.[8]
- [19]The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through ‘... a scheme to screen persons who work, or wish to work with children, to ensure they are suitable persons to do so’.[9]
- [20]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 (Qld) (the ‘QCAT Act’).[10]
- [21]
- [22]The decision under review is whether the Applicant’s case is an ‘exceptional case’.[12] Pursuant to s 221 of the WWC Act, the decision-maker must issue a blue card unless satisfied that an ‘exceptional case’ exists in which it would not be in the best interests of children to do so.
Exceptional Case
- [23]The term ‘exceptional case’ is not defined in the WWC Act. What is an ‘exceptional case’ is a question of fact and degree to be decided in each individual case, having regard to ‘...the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children’.[13]
- [24]In Re Imperial Chemical Industries Ltd’s Patent Extension Petitions,[14] Fullagar J cited Luxmore J in Re Peng and Brown’s Patents (1930) 48 R.P.C. 200, where it was warned that ‘it would be most unwise to lay down any general rule with regard to what is an exceptional case ... All these matters are matters of discretion’. That approach has been endorsed in this jurisdiction by the Court of Appeal.[15] As such, each case is to be considered on its own facts.
- [25]Where a person has been charged with, or convicted of, an offence, the Tribunal must have regard to the considerations prescribed by s 226 of the WWC Act in determining whether an ‘exceptional case’ exists.
- [26]Where a person has other information, as is the case in this matter, the Tribunal must have regard to the considerations prescribed by s 228 of the WWC Act in determining whether an ‘exceptional case’ exists.
- [27]Section 226 of the WWC Act is not an exhaustive list of considerations and does ‘not expressly or impliedly confine 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’.[16]
- [28]The Tribunal must decide the question of whether or not an ‘exceptional case’ exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[17]
- [29]Neither party bears an onus in determining whether an ‘exceptional case’ exists.[18]
The Standard of Proof
- [30]In Commissioner for Children and Young People and Child Guardian v Maher & Anor (‘Maher’),[19] it was accepted that the test in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 (‘Briginshaw’) applied to child-related employment decisions. As Philippides J stated, ‘the Tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of consequences involved, that there was an exceptional case’.
- [31]Any consequences, in terms of prejudice or hardship to the Applicant, are not relevant in child-related employment decisions.[20] The potential consequences for children, however, are significant.
The Human Rights Act
- [32]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.[21]
- [33]Under s 58 of the HRA, it is unlawful for a public entity:
- to act or make a decision in a way that is not compatible with human rights, or
- in making a decision, to fail to give proper consideration to a human right relevant to the decision.
- [34]There are likely to be a number of human rights impacted by child-related employment decisions made under the WWC Act including the human rights of the Applicant and the human rights of others, relevantly the rights of children.
- [35]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 is justified by the HRA.[22]
Is this an exceptional case?
- [36]In determining whether this is an exceptional case the Tribunal must:
- Have regard to the paramount principle under the WWC Act;[23]
- Consider the mandatory factors under s 226(2) of the WWC Act;
- Consider the mandatory factors under s 228(2) of the WWC Act;
- Consider other factors that are relevant to the decision;[24] and
- Give proper consideration to a human right relevant to the decision.[25]
The Paramount Principle
- [37]In relation to this matter, the Applicant has submitted that he needs a blue card to volunteer with the State Emergency Service and also, possibly, to operate helicopter flights in the tourism industry.
- [38]In this case such considerations are not relevant in determining whether the Applicant’s case is an ‘exceptional case’. Given the paramount principle, such considerations must “yield” to the consideration of whether issuing the Applicant a blue card is consistent with the welfare and best interests of children. This is a protective jurisdiction. Any hardship or prejudice suffered by the Applicant as a result of not being issued a blue card is of no relevance.[26] Similarly, any benefit which may flow to children from having access to the Applicant’s skill or flair in working with children is not relevant if it is not in the best interests of children for the Applicant to be issued a blue card.[27]
Section 226(2) of the WWC Act
- [39]As the Applicant has been convicted of an offence within the definition of ‘conviction’ under the WWC Act,[28] the Tribunal must have regard to the considerations prescribed by s 226(2) of the WWC Act in determining whether an ‘exceptional case’ exists.
Whether the offence is a conviction or a charge[29]
- [40]The Applicant has convictions for fraud and stealing, in addition to more recent convictions for offending against police, breach of court orders and domestic violence offending.
Whether the offence is a serious or disqualifying offence[30]
- [41]The offences for which the Applicant has been convicted are not defined as serious,[31] or disqualifying offences under the WWC Act.[32] Nevertheless, it is clear that Parliament intended that all offences on a person’s criminal history are to be considered in determining their eligibility to work with children in regulated employment.[33]
When the offence was committed or is alleged to have been committed[34]
- [42]The Applicant’s offending occurred in two relatively discrete periods — the first period being in 2003 and the latter period being between July 2016 and May 2017. While it is acknowledged that the Applicant’s most recent criminal conviction related to conduct that occurred in May 2017, a period of over six years ago, the passage of time without further convictions is not, of itself, conclusive that the risk of harm to children is reduced.[35]
- [43]The Applicant’s traffic history, which is dated 04 December 2019, demonstrates that the Applicant has traffic offences between August 1994 and February 2019.
The nature of the offence and its relevance to employment, or carrying on a business that involves or may involve children[36]
- [44]The nature of the Applicant’s offending is disclosed in the various documents that have been filed in this proceeding. The Applicant’s offending history raises concerns about the Applicant’s ability to exercise restraint, self-control and judge appropriate behaviour. Additionally, the Applicant’s conduct suggests a disregard for the wellbeing and property of others. The Applicant’s offending, and particularly his breaches of protection orders and a court order, raise concerns about his respect for the law and lawful behaviour. The importance of an applicant’s respect for the law was recently emphasised in the blue card review matter of IHI v Director-General, Department of Justice and Attorney General [2021] QCAT 206. The Tribunal relevantly held that:
Any child being cared for by a person has a right to have someone who has a respect for the law.
- [45]The Applicant’s offending as a whole raises questions about his ability to prioritise the rights, interests and well-being of others (including children and young people) over his own rights, interests and well-being. It also raises concerns about his ability to present as a positive role model.
In the case of a conviction – the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under section 357, the court’s reasons for its decision.
- [46]The Applicant has received sentences of imprisonment, a good behaviour period, and fines. The Court’s reasons for its decisions are outlined in the sentencing remarks filed in this proceeding.
Any information about the Applicant provided under sections 318, 319, 335, 337, or 338 of the WWC Act[37]
- [47]No information has been requested or received pursuant to these sections given they are not relevant or applicable to this matter.
Section 228(2) of the WWC Act
- [48]Material has been produced to the Tribunal by the former Department of Children, Youth Justice and Multicultural Affairs (‘Child Safety’), the Cairns and Hinterland Hospital and Health Service and the Mareeba Magistrates Court. The Tribunal considers this material to be other relevant information to be considered under section 228 of the WWC Act. It is noted at this point that the relevant subsections of s 228 of the WWC Act did not exist at the time the Applicant was issued a negative notice by the Respondent on 08 August 2019. The Disability Services and Other Legislation (Worker Screening) Amendment Act 2020 (Qld) introduced the ability for the decision-maker to take into account other relevant information.[38] The Child Protection Reform and Other Legislation Amendment Act 2022 (Qld) introduced the ability for the decision maker to take into account domestic violence information.[39] Section 597 of the WWC Act, the transitional provision, provides that if a review of a chapter 8 reviewable decision was started but not decided before the commencement of a relevant amendment then the entity hearing the review must apply the WWC Act as in force from the commencement of the relevant amendment. The Child Protection Reform and Other Legislation Amendment Act 2022 (Qld) received assent on 20 May 2022. As such the Tribunal is able to take this information into account pursuant to s 228 of the WWC Act.
Child Safety Material
- [49]In assessing the material received by Child Safety, the Respondent refers to the matter of Director-General, Department of Justice and Attorney-General v PML [2021] QCATA 51 wherein the Appeal Tribunal found the correct approach for the Tribunal in relation to matters concerning material produced by Child Safety is to apply an independent mind and deliberation to the concerns raised, irrespective of Child Safety’s findings that the concerns were substantiated or otherwise.[40]
Nature of the Information, including the circumstances and gravity of the behaviour[41]
- [50]The material produced to the Tribunal by Child Safety reveals that in March 2018 a consent order was made in the Family Court between the Applicant’s partner and her former partner which prevented the Applicant having any contact with his partner’s children.
- [51]The material outlines an incident where the Applicant had attended at the handover of the children in contravention of the order.
- [52]The material further provides that the Applicant had not been completely truthful with Child Safety when asked about his criminal history. The Applicant in fact denied any further history when in fact he had been convicted as recently as four months prior.
- [53]The Tribunal does have concerns regarding the Applicant’s failure to disclose and also his apparent disregard for court orders as they stand.
The length of time that has passed since the event or conduct[42]
- [54]The material from Chid Safety related to the period of time between June 2018 and May 2019.
Relevance to employment or carrying on a business that involves or may involve children[43]
- [55]The material demonstrates the Applicant has been non-compliant with a Family Court Order. He has also failed to disclose matters when specifically asked about his criminal history.
Domestic Violence Information
- [56]The Applicant has been the respondent to two final domestic violence orders and a number of temporary orders. Orders have included conditions in addition to the mandatory conduct conditions including no contact and no approaching the aggrieved. Some of the material provided included allegations of physical violence which the Applicant denied.
Length of Time that has passed since the event or conduct[44]
- [57]The last protection order naming the Applicant as the Respondent was made on 18 August 2017 and expired on 17 August 2022.
Relevance to employment/carrying on a business that involves or may involve children[45]
- [58]The Tribunal finds that the domestic violence material provided reflects poorly on the Applicant’s ability to exercise control over his emotions and to deal with conflict in an appropriate way.
The Applicant’s mental health
- [59]Poor mental health or mental illness, in and of itself, is not a barrier to holding a blue card. If mental health is related to prior offending behaviours or behaviours that provide concerns regarding working with and around children then in order to obtain and retain a blue card an Applicant must demonstrate they have insight into their behaviours, their mental illness is well maintained and that management mitigates risk.
- [60]In the blue card review matter of KAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 457 (‘KAP’), the Tribunal considered an application where the applicant had a history of mental illness associated with concerning past behaviour. The Tribunal relevantly observed:
In respect of blue card matters, if concerning behaviour has been displayed by applicants who have experienced mental health issues in the past, then the tribunal is entitled to know what, if any, is a risk of repetition of that concerning behaviour. This is crucial information required for any assessment as to whether the risk of harm to children is sufficiently negated so that a conclusion can be reached that there was little or no likelihood of a risk to children.[46]
- [61]The Tribunal in KAP also observed:
...it is not sufficient for [the applicant] to rely solely upon him attending counselling. He must show he has acquired the necessary ability or skills to cope with stressful situations. That is, there must be evidence to support the hypothesis the counselling he received greatly reduces the risk of his susceptibility to self harming in stressful situations.[47]
- [62]The Applicant has, on a number of occasions, raised his mental health as being associated with his offending. For example, during the assessment of his application for a working with children clearance the Applicant submitted:
I have had some issues with police that were directly associated with my mental health issue of PTSD and associated depression. I submit to you that the issues highlighted are from the onset of my PTSD and associated depression and ONLY during my treatment period…
- [63]The Applicant has filed two letters from his general practitioner, Dr Chris Goodall, dated 16 October 2018 and 25 February 2020. The earlier letter included, among other things, that the Applicant has had ‘a complete resolution of symptoms’. However, despite this matter having had two previous hearings adjourned to allow further medical evidence, the Applicant has neither filed up-to-date medical information nor called any witnesses to give evidence as to the Applicant’s mental health. The Tribunal finds this is adverse to the Applicant, and in accordance with KAP, the Tribunal is entitled to know the degree, if any, of the risk of repetition of the concerning behaviour.
- [64]At the hearing of this matter, the Applicant submitted that it had now been some six to seven years since his last conviction and in that time there had been no further offending, no accusations of domestic violence and no negative things in his life whatsoever. In essence, the Applicant submitted that the time that has elapsed accompanied by his lack of further adverse information demonstrates this his mental health is no longer of concern. The Tribunal finds that this argument is flawed; the absence of evidence is not evidence of absence. In the matter of Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86 the Appeal Tribunal considered the Tribunal’s decision at first instance, including the characterisation of an absence of evidence of further offending as a protective factor. The Appeal Tribunal relevantly held that:
The protective factors articulated by the learned Member are not protective factors but rather statements about the lack of evidence.’ ...the learned Member has essentially found, or drawn an inference, that Mr Masri has not continued to engage in illegal or anti-social behaviour. Before an inference about an ultimate fact can be drawn convincingly, the circumstantial facts on which it is based should be clearly and rationally determined and the process of drawing the inference adequately described. The reasons should reflect proper and genuine consideration of competing views.
The absence of criminal convictions for such behaviour is not probative evidence that Mr Masri does not engage in such behaviour only that he has not been caught doing so by police...
- [65]The Applicant’s failure to provide up-to-date evidence regarding his mental health, particularly in light of repeated Directions of the Tribunal, two hearings being vacated, and statements made to the Tribunal regarding his progress to obtain up-to-date medical information, is adverse to him in these proceedings.
Applicant’s Witnesses
- [66]In this proceeding the Applicant filed a number of witness statements from a number of different persons. The Applicant did not call anyone to give evidence on his behalf at the hearing of this matter. In light of these witnesses not being made available for cross-examination, the Tribunal affords minimal weight to these.
Applicant’s Insight
- [67]The Respondent submitted that an applicant’s insight into and understanding of the wrongfulness of their offending behaviour is a relevant consideration to whether their case is an ‘exceptional case’ in the terms of s 221 of the WWC Act.
- [68]The importance of an applicant possessing insight as a protective factor was noted by the former Children’s Services Tribunal in the matter of Re TAA [2006] QCST 11, where the Tribunal relevantly observed:
The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children.[48]
- [69]This consideration is particularly important in this matter because, as was held by the Tribunal in the blue card review matter of CNL v Director-General, Department of Justice and Attorney-General [2017] QCAT 294:
The passage of time is a relevant consideration, but it is not a determinative factor. The passage of time could be a protective factor where it is accompanied by a genuine insight.[49]
Human Rights
- [70]There are a number of competing human rights relevant to the decision before the Tribunal. These include the human rights of the Applicant and the human rights of children,[50] 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 s 26(2) of the HRA.
- [71]The Tribunal in inclined to the view that a decision that the Applicant’s case is an ‘exceptional case’ will be nevertheless compatible with human rights. This is because, despite any limit the decision places on the Applicant’s human rights, the decision will be justified by the factors outlined under s 13 of the HRA. The decision will be justified, inter alia, 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.[51]
- [72]Furthermore, 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.
- [73]Overall, the Applicant’s offending, in addition to the material produced to the Tribunal pursuant to a Notice to Produce, raises questions about the Applicant’s ability to exercise restraint, respond to stressors in a rational and lawful way and engage in appropriate conflict resolution. Concerns continue to be held about the Applicant’s mental health and the degree to which it is effectively managed, particularly in the absence of the Applicant filing an up-to-date health report and because it is clear that mental health issues in the past led to his offending behaviour. These concerns, in turn, raise questions about the Applicant’s ability to act protectively of children and young people in his care and the potential risk he may pose to the welfare and best interests of children and young people placed in his care.
- [74]Having regard to all matters presented, the Tribunal is satisfied, on the balance of probabilities and bearing in mind the gravity of consequences involved, that the Applicant’s case is an “exceptional case” in which it would not be in the best interests of children for the Applicant to be issued with a blue card.
Order
- [75]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.
Footnotes
[1]Applicant’s application for miscellaneous matters filed 4 November 2021.
[2]And as amended on 6 December 2021.
[3]Applicant’s email to the Tribunal and the Respondent dated 18 January 2022.
[4]Respondent’s email to the Tribunal and the Applicant dated 18 January 2022.
[5]Applicant’s application for miscellaneous matters filed 24 February 2022.
[6]Applicant’s email to the Tribunal dated 21 April 2022.
[7]WWC Act, s 6(b).
[8]Ibid, s 360.
[9]WWC Act, s 5; WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17].
[10]QCAT Act, s 19(a).
[11]Ibid, s 20(1).
[12]WWC Act, s 353(a)(i).
[13]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] citing Kent v Wilson [2000] VSC 98, [22] (Hedigan J).
[14][1983] 1 VR 1, 10.
[15]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34] (Philippides J) (‘Maher’).
[16]Ibid [42].
[17]Ibid, citing the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
[18]Commissioner for Children and Young People and Chid Guardian v Storrs [2011] QCATA 28.
[19] [2004] QCA 492.
[20]Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109] (Buss J).
[21]SSJ v Director General, Department of Justice and Attorney General [2020] QCAT 252 (unpublished decision, 17 June 2020), [109].
[22]HRA, s 8.
[23]WWC Act, s 6.
[24]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, applying s 102(5) of the Commissioner for Children and Young People and Child Guardian Act 2002 (Qld) (‘CCYPCG Act’) (prior to amendments and renumbering of the CCYPCG Act in 2010 (Philippides J); Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [16].
[25]HRA, s 58(1)(b).
[26]Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109] (Buss J).
[27]Ibid.
[28]WWC Act, sch 7 (definition of “conviction”)
[29]Ibid, s 226(2)(a)(i).
[30]Ibid, s 226(2)(a)(ii).
[31]Ibid, s 15, sch 2.
[32]Ibid, s 16, sch 4.
[33]Explanatory Notes, Commission for Children and Young People Bill 2000, page 11.
[34]WWC Act, s 226(2)(a)(iii).
[35]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [55].
[36]WWC Act, s 226(2)(a)(iv).
[37]Ibid, s 226(2)(b)-(d).
[38]Disability Services and Other Legislation (Worker Screening) Amendment Act 2020 (Qld), s 44.
[39]Child Protection Reform and Other Legislation Amendment Act 2022 (Qld), s 80.
[40]Director-General, Department of Justice and Attorney-General v PML [2021] QCATA 51, [40].
[41]WWC Act, s 228(2)(d).
[42]Ibid, s 228(2)(e).
[43]Ibid, s 228(2)(f).
[44]Ibid, s 228(2)(e).
[45]Ibid, s 228(2)(f).
[46]KAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 457, [60].
[47]Ibid, [63].
[48]Re TAA [2006] QCST 11, [97].
[49]CNL v Director-General, Department of Justice and Attorney-General [2017] QCAT 294, [166].
[50]This could include the Applicant's right to privacy and reputation (HRA, s 21), right to take part in public life (HRA, s 23), right to further vocational education and training (HRA, s 36(2)), and the Applicant's cultural rights (HRA, ss 27-28).
[51]HRA, s 13(2)(b).