MRA v Director-General, Department of Justice and Attorney-General
[2024] QCAT 182
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- MRA v Director-General, Department of Justice and Attorney-General[2024] QCAT 182
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MRA v Director-General, Department of Justice and Attorney-General[2024] QCAT 182
MRA v Director-General, Department of Justice and Attorney-General[2024] QCAT 182
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | MRA v Director-General, Department of Justice and Attorney-General [2024] QCAT 182 |
PARTIES: | MRA (applicant) v director-general, department of justice and attorney-general (respondent) |
APPLICATION NO/S: | CML257-22 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 24 April 2024 |
HEARING DATE: | 7 September 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Davies |
ORDERS: | The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is ‘exceptional’ within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. |
CATCHWORDS: | 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 – 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 – decision that applicant’s case is ‘exceptional’ is upheld Human Rights Act 2019 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Working with Children (Risk Management and Screening) Act 2000 (Qld) 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 & Anor [2004] QCA 492 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6 Johnston v Carroll [2024] QSC 2 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-Represented |
Respondent: | L Hailstones Legal Officer, Department of Justice and Attorney General |
REASONS FOR DECISION
Introduction
- [1]The Applicant (‘MRA’) has applied for a review of a decision made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
- [2]The decision under review was made by the Acting Director of Blue Card Services (‘BCS’) screening services in July 2022 (‘Decision Maker’). In summary, the Decision Maker was, on the material before her, satisfied that issuing MRA with a working with children clearance (‘Blue Card’) would not be in the best interests of children and young people. The reasons for that decision (‘Negative Notice Decision’) were rendered into a document entitled ‘Reasons for the decision to issue a negative notice’ dated 13 July 2022 (‘Reasons document’).[1]
- [3]MRA was dissatisfied with that decision. By an application to review a decision dated and filed with the Tribunal on 12 August 2022 she seeks a review of the Negative Notice Decision.
Legislative framework and role of Tribunal
- [4]The principal legislative enactments relevant to a review by this Tribunal of the Negative Notice Decision are the WWC Act – under which the Negative Notice Decision was made – and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) – under which the Tribunal exercises its review jurisdiction.
- [5]The object of the WWC Act is to 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.[2]
- [6]The Negative Notice Decision is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act.
- [7]The purpose of a review by this Tribunal of the Negative Notice Decision is to produce the correct and preferable decision.[3] In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.[4] That is to say, this Tribunal must come to a decision on the evidence before it.
- [8]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.
- [9]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]
- [10]The WWC Act provides, as a starting point, that a person in the position of MRA should be allowed to hold a Blue Card unless that person’s situation is an exceptional case. An exceptional case is one where the decision maker is satisfied that it would not be in the best interests of children for the Applicant to be issued with a working with children clearance.[6]
- [11]Thus, in conducting this review of the Negative Notice Decision, the ultimate issue for determination is whether an exceptional case exists. That is, whether MRA’s situation is such that it would not be in the best of children for a positive notice to be issued.[7]
- [12]The term ‘exceptional case’ is not specifically defined in the WWC Act. As to what constitutes an exceptional case, this 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 what constitutes an exceptional case should be unhampered by any special meaning or interpretation.[8]
- [13]In determining whether the Applicant’s circumstances constitute an exceptional case an appropriate framework for consideration of this application is as follows:
- The principles for the administration of the WWC Act. That is, the matters summarised in [9] above.
- The matters that the WWC Act mandates must be considered. Relevantly, these matters are set out in s 226(2) of the WWC Act (‘the s 226 matters’).
- Any human right relevant to the decision.
- Any other matters, not specifically mentioned above, that are relevant to the decision.[9]
- [14]In this context it can be observed that there was evidence before the Tribunal that was not before Blue Card Services at the time that the Negative Notice Decision was made.
- [15]With respect to human rights relevant to the decision, 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 imposes two obligations on the Tribunal. They are the substantive obligation[10] not to make a decision in a way that is incompatible with human rights and the procedural obligation[11] not to fail to give proper consideration to a relevant human right in making a decision.[12]
- [16]The human rights that are relevant to the parties, in particular MRA, include the right to privacy and reputation[13] and the right to a fair hearing.[14] 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’ as provided for in s 26(2) of the HRA.
Evidence
- [17]Before considering the evidence before the Tribunal, a preliminary observation is apposite. A determination of whether an exceptional case exists can only be made after evaluating all the available evidence.[15] In evaluating the evidence it needs to be recognised that the ‘ultimate question of what is in the best interests of children does not lend itself to exact proof. It involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and the potential future risks to children’.[16]
- [18]With this as background, what evidence was before the Tribunal?
- [19]Blue Card Services put before the Tribunal two sets of documents. They were the Negative Notice Decision and documents related to that decision (‘the BCS documents’)[17] and a set of documents produced to the Tribunal under a Notice to Produce (‘the NTP documents’).[18] In addition, BCS prepared a comprehensive set of written submissions.[19]
- [20]MRA’s evidence in support of her application fell into three broad categories. They were firstly her written statement and her oral evidence.[20] Secondly, the statements[21] and the related oral evidence of the witnesses who appeared in support of MRA’s application. The third category of evidence consisted only of documents. Those documents related to MRA’s attendance at two related residential facilities where she sought treatment for drug addiction and a report from a clinical psychologist with whom she had been consulting under a mental health care plan.[22]
- [21]In respect of this third category no supporting oral evidence was called. This meant that MRA’s clinical psychologist was not available for examination in respect of her report.
- [22]An evaluation of the evidence before the Tribunal in this matter is most appropriately assessed by under the framework set out in [13] above with the recognition that the principles for the administration of the WWC Act and the relevant provisions of the HRA condition the evaluation of all the evidence before the Tribunal.
Discussion
The s 226 matters
- [23]The WWC Act, in s 226(2), sets out matters that this Tribunal must have regard to in deciding whether there is an exceptional case where the person in question has been the subject of a conviction or charge.
- [24]The parties agree regarding the offences that are relevant.[23] They are as follows:
- A charge of common assault arising from an event in New South Wales in July 2017. This matter came before the Tweed Heads Local Court in December 2017. The court outcome was that MRA was discharged into care under the Mental Health (Forensic Provisions) Act 1990 (NSW).
- A charge of wilful damage and common assault arising from events that also occurred in July 2017. This time the events occurred on the Gold Coast. These charges were withdrawn by an order of the Mental Health Court.
- A charge of stealing arising from events that occurred in Bundaberg in June 2020. The stealing was from a retail store. This matter came before the Magistrates Court in August 2020. MRA was convicted and sentenced to a good behaviour bond. No conviction was recorded. The transcript of the proceedings reveals that the Magistrate, in sentencing, took into account MRA’s plea of guilty and material from her ‘treating doctors and psychologist’.[24]
- [25]It is common ground that these offences are not serious offences as that term is used in s 260. Further, that the only conviction was in relation to the stealing charge.
- [26]In relation to her criminal history MRA accepts that her past behaviour shows that she was, in 2017, unstable and aggressive. Commendably, she takes full responsivity for causing harm. She also, in her evidence, gives context to the matters that she was charged with including highlighting her concern for the welfare of a friend who she considered had been subject to a sexual assault and (separately) the welfare of a dog.
- [27]With respect to the stealing offence, described as premeditated and dishonest conduct by BCS, MRA also accepts responsibility for her conduct but provides some context. MRA says that, at the time of her offending in 2020 she was under the influence of prescription medication and in a ‘toxic’ relationship with her then boyfriend.
- [28]However, what is concerning in considering the ultimate question of whether or not MRA’s case is exceptional is the common thread that her mental health and drugs played in each offence.
- [29]BCS submit, and I accept, that the evidence shows a nexus between MRA’s mental health and the offences that she has been charged with. Whilst a mental health condition certainly does not preclude MRA from holding a blue card, what is relevant is, in my view, MRA’s management of her mental health in the context of all other relevant matters.
Other relevant matters
- [30]Before specifically addressing the issue of MRA’s management of her mental health under this heading it is appropriate to mention several other relevant matters.
- [31]The witnesses who provided statements (or references) and subsequently gave oral evidence for MRA were all aware of MRA’s offending. These witness, who had known MRA for lengths of between about 2 to 18 years, all spoke highly of her character and, where they were able to do so, of her interaction with children. Of particular relevance in this regard was the evidence of a witness who had known MRA for 18 years and was a Child Safety Officer with the Queensland Department responsible for children.[25]
- [32]This witness gave evidence of MRA’s change in behaviour as a result of her ‘ice addiction’ and she had seen firsthand the deterioration of MRA’s mental health. However, she expressed the view that MRA was remorseful for her actions and considered that the Applicant was committed to bettering herself and getting her life back on track.
- [33]All MRA’s character witnesses expressed the view that they would assist in providing a support network for her.
- [34]Turning to the issue of MRA’s mental health, the principal evidence was a report by the clinical psychologist she is seeing under a Mental Health Care Plan initiated by her GP. The reason for the GP’s referral was ‘for support and management of BiPolar Affective Disorder and queries regarding an overlap of Borderline Personality Disorder’.[26]
- [35]The report was reasonably detailed and was admitted into evidence. However, the author of the report was not called by MRA to give oral evidence and thus could not be questioned on her report. Further, the psychologist had only seen MRA for four sessions and had not completed any formal diagnostic assessments.
- [36]Given the nexus between MRA’s mental health, drug use and offending there are matters addressed in the report that cause particular concern. These matters include the observation in the report that MRA ‘is currently not taking any medication to manage her BPAD, and while not always required, it is something to monitor and implement if manic or depressive episodes are triggered in the future’ and ‘I would be concerned if (MRA) ceased accessing psychological support in the future’.
- [37]These comments need to be considered in the light of what is revealed by the NTP documents. The NTP documents in my view bring into sharp focus the concerns or qualifications expressed by the report of the clinical psychologist. In particular, the NTP documents reveal, amongst other matters:
- MRA’s multiple hospital admissions including an involuntary admission.
- A history of refusing mood-stabilising medication causing a relapse of manic symptoms.
- Use of methamphetamine.[27]
- [38]Whilst I appreciate that the matters mentioned in the previous paragraph occurred in or before 2017, these matters when combined with the contents of the psychologist’s report do cause concern.
- [39]I consider that MRA has made very commendable steps in rehabilitation and establishing her life on a more stable footing. However, whilst endorsing the proposition that mental health conditions are not a barrier to holding a blue card, I have come to the conclusion that there is insufficient evidence to satisfy me that MRA’s mental health conditions are appropriately managed such that the risks of a repetition of any concerning behaviour are appropriately mitigated.
Conclusion
- [40]Given this and in the light of the paramount consideration of the best interests of the children I have come to the view that MRA’s case is exceptional within the meaning of s 221 of the WWC Act. In coming to this decision, I have given consideration to the competing human rights relevant to this decision. To the extent that my decision places limits on MRA’s human rights I consider that the decision is justified by the factors set out in s 13 of the HRA.
Non-publication order
- [41]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.[28] Such an order was made by a direction of the Tribunal on 10 March 2023. Neither party contended that this order required amendment or modification. That order stands.
Footnotes
[1] The Reasons document forms part of Exhibit 1.
[2] WWC Act, s 5.
[3] QCAT Act, s 20(1).
[4] QCAT Act, s 20(2).
[5] WWC Act, ss 6 and 360.
[6] WWC Act, s 221(1) and (2).
[7] WWC Act, s 221(2).
[8]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]–[35].
[9]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
[10] HRA, s 58(1)(a).
[11] HRA, s 58(1)(b).
[12]Johnston v Carroll [2024] QSC 2, [65]–[77].
[13] HRA, s 25.
[14] HRA, s 31.
[15]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[16]Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [16].
[17] The BCS documents are exhibit 1.
[18] The NTP documents are exhibit 2. The Tribunal has the power under s 63 of the QCAT Act to obtain documents or things from a third party. This power was exercised, and directions made by the Tribunal on 9 January 2023 for the production of certain documents.
[19] Exhibit 3.
[20] MRA’s statement is Exhibit 5.
[21] Exhibits 9 – 13.
[22] Exhibit 8.
[23] The s 226 matters are addressed at paragraphs 18–23 of BCS’ written submissions. MRA, in her outline of argument (exhibit 4, paragraph 30) sets out a table that concurs with the offences outlined by BCS.
[24] Exhibit 1 at page BCS-40.
[25] Exhibit 9.
[26] The quoted words are from the report of the psychologist, exhibit 8.
[27] BCS submissions dated 11 August 2023, the NTP documents are summarised at paragraph 25 of those submissions.
[28] QCAT Act, s 66.