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HRE v Chief Executive, Department of Child Safety, Seniors and Disability Services[2024] QCAT 221

HRE v Chief Executive, Department of Child Safety, Seniors and Disability Services[2024] QCAT 221

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

HRE v Chief Executive, Department of Child Safety, Seniors and Disability Services [2024] QCAT 221

PARTIES:

HRE

(applicant)

v

Chief Executive, Department of Child Safety, Seniors and Disability Services

(respondent)

APPLICATION NO/S:

GAR444-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

26 May 2024

HEARING DATE:

11 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Bridgman

ORDERS:

  1. 1.The decision of the chief executive of the Department of Child Safety, Seniors and Disability Services that HRE poses an unacceptable risk of harm to people with disability within the meaning of s 92(2) of the Disability Services Act 2006 (Qld) is set aside and replaced with the Tribunal’s decision that HRE does not pose an unacceptable risk of harm to people with disability.
  2. 2.The non-publication order made on 31 August 2023 prohibiting publication of information identifying the Applicant, his former spouse or his stepchildren and restricting access to documents on the Tribunal files is continued and extended to include the identity of witnesses in these proceedings and materials filed after that original order.

CATCHWORDS:

ADMINISTRATIVE REVIEW – clearance to work – where exclusion issued – whether applicant poses an unacceptable risk to people with disability – nature of decision under review – pattern of conduct – risk assessment

Criminal Code Act 1899 (Qld), s 315A

Disability Services Act 2006 (Qld)

Devon v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 386

Griggs v Department of Human Services [2023] SACAT 60

JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2023] QCAT 316

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

RPG v Public Safety Business Agency [2016] QCAT 331

Queensland College of Teachers v Teacher VNA [2024] QCAT 113

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

APPEARANCES & REPRESENTATION:

Applicant:

Mr C. Bolovan instructed by Kilmartin Knyvett Solicitors

Respondent:

Dr M. Brooks instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    HRE worked in the disability support field from November 2016. In May 2021 he applied for NDIS Worker Screening Clearance, having previously worked under various exemptions.
  2. [2]
    On 19 July 2022 he was issued an exclusion notice by the Chief Executive, Department of Child Safety, Seniors and Disability Services, confirmed by internal review on 4 October 2022 under s 138ZW of the Disability Services Act 2006 (Qld) (‘Disability Services Act’). An interim bar had been issued on 25 November 2021 under s 82 of that Act.
  3. [3]
    He seeks external review of the exclusion notice decision and wishes to resume his previous occupation. If the exclusion remains in place, HRE is prohibited from making a disability worker screening application,[1] and must wait more than 5 years before applying for the exclusion to be cancelled.[2]
  4. [4]
    The Tribunal is considering this application in its review jurisdiction by way of fresh hearing on the merits and the Tribunal must determine the correct and preferable decision.[3] The decision of the Department to issue an exclusion to the applicant is a reviewable decision.[4] The Tribunal is not bound by the rules of evidence[5] and is tasked with producing the correct and preferrable decision in a fresh hearing on the merits.[6]
  5. [5]
    The issue before the Tribunal is circumscribed: is it the correct and preferable decision that the Applicant does, or does not, “pose an unacceptable risk of harm to people with disability”.[7] In the review, the Tribunal, stands in the shoes of the chief executive in assessing the risk.

Evidence

  1. [6]
    HRE graduated as a Bachelor of Behavioural Science in 2004 and has worked almost exclusively in disability support since then until the interim bar and the exclusion notice. He worked in child safety for a time, during which he was the subject of the unsubstantiated complaint relevant to the present proceedings. He is currently in his mid-40s.
  2. [7]
    The decision under review was unfavourable to HRE based on three categories of information:
    1. domestic violence information, including extant and historic domestic violence orders (‘DVO’). The current DVO was made on application of HRE’s former wife (referred to here as ‘D’). Related child protection and other information was also filed;
    2. disciplinary information in the form of a complaint by a subject child made against HRE when he was in a child protection role;
    3. historic traffic offences including:
      1. an offence of carrying a child unrestrained in a vehicle in September 2000 (“carriage offence”); and
      2. a significant number of speeding offences between 1998 and 2018.
  3. [8]
    The Applicant’s response to these categories of information may be summarised as follows:
    1. the domestic violence and the DVOs were in the context of a troubled relationship and acrimonious separation and disputation about property. HRE deeply regrets his acts, and notes he consented to the current order, without admission;
    2. the subject child’s complaint was ill-motivated and unsubstantiated, and did not result in any investigation or action by HRE’s then employer, a Queensland Government department, or police;
    3. the traffic offences must be seen in context:
      1. the carriage incident took place in response to a medical emergency involving a three-year-old child in 2020. That incident, especially the return journey once the emergency had been addressed, was also a matter of deep regret for him;
      2. speeding fines were incurred by D driving his vehicle. He says she paid the fines allowing demerit points to accrue to him without knowledge of her offending. On his uncontested evidence, he was unaware until demerit point notices issued. Once the motor vehicle was registered to D, his speeding record is unremarkable.
  4. [9]
    HRE’s submissions and oral evidence are that he:
    1. acknowledges past shortcomings;
    2. demonstrates insight;
    3. has developed such that he ought not be excluded on the basis of his past errors;
    4. has the confidence of a prospective, responsible employer who knows him well and is fully aware of these proceedings; and
    5. does not therefore pose an unacceptable risk for the purposes of the Act.
  5. [10]
    HRE does not challenge the factual basis of the three main heads of concern raised by the Respondent, namely:
    1. acts of domestic violence and the existence of the DVO, although HRE disputes some details of physical contact particularly with one of D’s children;
    2. the fact of the child’s complaint, although HRE disputes the veracity and relevance of the complaint;
    3. and the traffic history, although asserting that some or all speeding offences were committed by D and not by him.
  6. [11]
    HRE contests the weight and relevance of these matters to his current suitability to work in disability support.
  7. [12]
    He was supported in this application by his past business partner (‘M’) who is also a prospective employer. M gave oral evidence. Untested character evidence in his favour was also before the Tribunal.

Domestic violence information

  1. [13]
    The extensive supplementary material includes the current DVO made by a magistrate on 7 October 2020 by consent, without admission. The material seems to relate to conduct from a time before HRE and D were married[8] until their separation shortly before the DVO was made. One significant precipitating event was an act of strangulation in 2016, described by HRE as a momentary act. Another involved excessive discipline of a step-child. The 2020 DVO order relates to allegedly intimidatory conduct during property settlement negotiations conducted, it seems, by telephone, email and other electronic means and via social media with D’s children.
  2. [14]
    The first ‘record of concerns’ (child protection information) in the supplementary material dates from 18 February 2016; a report dated 5 October 2018 records step-down; and a closure report from Uniting Care is dated 21 February 2019.

Counselling

  1. [15]
    HRE’s evidence included the following:[9]
  1. 15.I accept that in my past, I have had unacceptable responses to anger and stress in my personal life. I have undertaken counselling to help me learn appropriate coping strategies to deal with the impact of having seen domestic violence perpetuated by my parents on myself and my siblings as a child.
  1. [16]
    The counselling was group and individual counselling through Relationships Australia and other providers.
  2. [17]
    A positive statement by a counsellor dated as to HRE’s attendance and positive engagement in therapy and additional sessions was in evidence but untested.[10] The counsellor concludes that HRE:

… engages well in the therapeutic process and shows demonstrable insight into personal responsibility, emotional regulation, and his psychoemotional wellbeing.

Traffic offences

  1. [18]
    HRE asserts in uncontested evidence that traffic offences recorded against him were committed by D, driving HRE’s motor vehicle. She paid the fines but failed to inform HRE. As a result he incurred demerit points. He regrets other offences and claims his driving record should be no bar to his working with NDIS clients, as demonstrated by the absence of speeding offences since September 2018.
  2. [19]
    The offence of driving with an unrestrained child is explained in his statement as follows:[11]
  1. 17.In relation to the entry dated 21 September 2020 … I was living with a woman who had a small child (3 years old) and no vehicle. On the date in question the child began to choke on an object and was having trouble breathing. The mother called an ambulance … After 20 minutes the ambulance had not arrived…. My car was only a two seater, but given the emergent nature of the incident, and the risk posed to the child, I took the child to the hospital for treatment in the passenger seat on the mother’s lap, both restrained with a seatbelt. On returning from the hospital, I was pulled over by police and issued a fine for having three people in a car registered for two people.

Worker screening under the Disability Services Act

  1. [20]
    Worker screening under the Act is part of a nationally consistent process, concordant across Australia for workers within the National Disability Insurance Scheme (‘NDIS’) related workforce.[12] The framework implements Queensland’s obligations under the Intergovernmental Agreement on Nationally Consistent Worker Screening for the NDIS (‘IGA’) and supports the paramountcy of “the right of people with disability to live lives free from abuse, violence, neglect or exploitation, including financial abuse or exploitation” stated in s 41 of the Disability Services Act.
  2. [21]
    Cognate legislation with local differences exists in all States and Territories. The Act also provides a parallel system for State disability worker screening.
  3. [22]
    Worker screening under the Queensland Act is statutorily complicated, found in Pt 5 (ss 40-138XXB); relevant transition provisions in Pt 9; definitions in Sch 8; and the Disability Services Regulation 2017 (Qld) Pt 2.
  4. [23]
    Central to HRE’s ability to work in his chosen field of disability support for NDIS clients is that he holds an NDIS clearance.[13] It would be an offence under s 53 for a registered NDIS provider to engage HRE to carry our ‘risk-assessed NDIS work’ as defined in s 45, and an offence under s 54 for HRE carry out such work.
  5. [24]
    The decision maker for disability worker screening applications is the chief executive (s 87), at the time of hearing the Director-General, Department of Child Safety, Seniors and Disability Services,[14] and public servants holding delegation from the Director-General (s 235).
  6. [25]
    There are multiple pathways to a decision on screening applications depending on the history of the applicant. HRE previously worked in disability services under exemptions, but is now subject to an exclusion notice after applying for clearance. He has not been charged with any “serious offence” or “disqualifying offence”, meaning certain decision pathways are not applicable.
  7. [26]
    The relevant statutory provisions are as follows.
  1. 87Dealing with application
  1. (1)
    The chief executive must—
  1. (a)
    consider the person’s application and the information available to the chief executive about the person; and
  2. (b)
    [not applicable]
  3. (c)
    if section 91 or 92 apply to the person—conduct a risk assessment of the person before deciding the application under that section.
  1. (2)
    [not applicable]

…

  1. 88Information to be considered
  1. (1)
    The chief executive must consider each of the following types of information for a person of which the chief executive is aware, if any—
  1. (a)
    police information;
  2. (b)
    domestic violence information;
  3. (c)
    disciplinary information;
  4. (d)
    NDIS disciplinary or misconduct information;
  5. (e)
    information about—
  1. (i)
    whether the person holds, or has previously held, a clearance, interstate NDIS clearance, exclusion or interstate NDIS exclusion; or
  2. (ii)
    if the person has previously held a clearance or interstate NDIS clearance—whether the clearance was suspended at any time or cancelled.
  1. (2)
    The chief executive may consider other information about the person that is relevant to whether the person poses a risk of harm to people with disability.
  1. [27]
    Sections 89-91 do not apply to HRE (he has no serious or disqualifying offence history), but s 92 does:
  1. 92Deciding application—general assessment of risk posed
  1. (1)
    This section applies if sections 89, 90 and 91 do not apply to the person.
  2. (2)
    The chief executive must—
  1. (a)
    if satisfied the person does not pose an unacceptable risk of harm to people with disability—issue a clearance to the person; or
  2. (b)
    if satisfied the person poses an unacceptable risk of harm to people with disability—issue an exclusion to the person.
  1. [28]
    Sections 93-96 deal with the conduct of a risk assessment; matters to be considered; provision of show cause notices; and consideration of submissions in response before making a finding. Section 98 deals with issuance of clearances; s 99 with issuance of exclusions.

Risk

  1. [29]
    The Disability Services Act explicitly references risk and risk assessment in decisions about whether a person should be authorised to work with this cohort of vulnerable people.
  2. [30]
    As noted in Tanielu v Minister for Immigration and Border Protection,[15] (‘Tanielu’) a case about the character test under Federal migration laws, assessment of risk of future harmful conduct is a familiar task to courts and tribunals. As in this case, there is a protective intent in the legislation. Mortimer J elucidated two principles that apply by analogy here:
  1. [100]
    First, in decision-making which has a clear protective purpose, and which therefore involves an assessment of how a person may behave in the future, and whether that behaviour involves a risk of harm or a risk of repetition of prior conduct that has been impugned in one way or another, it is an inherent and indispensable part of any such assessment that the likelihood of a person engaging in such conduct in the future is considered. There is no reason to suppose any qualitatively different approach is to be taken in administrative decision-making where the exercise of a power is intended by Parliament to be protective of the safety and welfare of others.
  2. [102]
    Second, where a decision-maker chooses, as the Minister chose in the present case, to examine whether there is an “unacceptable risk” to the Australian community if a person remains in Australia, in order lawfully to determine the nature and magnitude of that risk, certain matters need to be considered. The term “unacceptable risk” is not without content in Australian law, and that content has some general features which can be derived from authorities such as those to which I have referred. One feature, the one upon which the applicant fastens in his third ground of review, is that the likelihood of a person engaging in conduct in the future which may cause harm needs to be assessed. The authorities to which I have referred make it clear that an assessment of likelihood of conduct occurring, or recurring, is assumed to be an integral part of determining risk.
  3. [103]
    It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
  1. [31]
    Under the Disability Services Act, relevant to this matter, disability worker screening starts with information gathering (ss 87-88). If there is no information of the type stated in s 88 a clearance must issue (s 89).
  2. [32]
    If, as here, there is relevant information but no convictions or relevant charges, the chief executive is required to reach a state of satisfaction about whether or not the Applicant poses an unacceptable risk of harm to persons with disability (s 92(2)). That satisfaction must be positively reached: there is, or alternatively there is not, unacceptable risk. (In migration decisions such as in Tanielu the absence of satisfaction is equally dispositive as a finding against the applicant’s character).
  3. [33]
    Failure to be satisfied means there can be no decision and, presumably, further information gathering and assessment is needed to satisfy the decision maker.
  4. [34]
    Section 93, particularly in subs (2)(b), provides guidance for how that state of satisfaction might be reached:
  1. 93How chief executive conducts risk assessment
  1. (1)
    The chief executive conducts a risk assessment of a person by—
  1. (a)
    considering the information about the person obtained by the chief executive under this part; and
  2. (b)
    deciding whether the person poses an unacceptable risk of harm to people with disability.
  1. (2)
    In conducting the risk assessment, the chief executive—
  1. (a)
    must consider information as required under this division; and
  2. (b)
    may decide the person poses an unacceptable risk of harm to people with disability—
  1. (i)
    if satisfied there is a real and appreciable risk that the person might cause harm to people with disability; and
  2. (ii)
    without needing to be satisfied it is likely the person will cause the harm.
  1. [35]
    In Griggs v Department of Human Services, a South Australian case under cognate legislation, it was said:[16]
  1. [53]
    … a “real and appreciable risk” must be actual and perceptible; it must be more than a theoretical, speculative, remote or fanciful risk; and must be unacceptable such that it ought not to be allowed. (footnote omitted)

Scope of Tribunal’s decision making

  1. [36]
    The Respondent argued the Tribunal’s jurisdiction is constrained, based on JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships (‘JD’):[17]
  1. [64]
    … The Respondent respectfully adopts Member Taylor’s reasoning from [85]-[88], wherein the learned Member concludes that it is ‘only to the extent’ that s 98(1)(a)(i) of the DS Act requires the chief executive to decide that a clearance should be issued, that this Tribunal steps into the shoes of the Chief Executive. The process of ‘issuing’ a Clearance does not form part of the Tribunal’s decision-making function.
  2. [65]
    The Respondent submits that it is for the Tribunal to determine whether the Applicant posed an unacceptable risk to people with disability; if the Tribunal decides the Applicant does not or no longer poses an unacceptable risk to people with disability, it does not need to, or have the power to, issue a clearance or a clearance card.
  1. [37]
    Section 98 referred to above provides as follows.
  1. 88Issuing clearance and clearance card
  1. (1)
    If the chief executive decides to issue a clearance to the person, the chief executive must—
  1. (a)
    give the person a notice that states the chief executive has decided—
  1. (i)
    if the person made an NDIS worker screening application—to issue the person an NDIS clearance; or
  2. (ii)
    if the person made a State disability worker screening application—to issue the person a State clearance; and
  1. (b)
    issue a clearance card for the clearance to the person.
  1. (2)
    A clearance card, for a clearance issued to a person, is a document, in the form of a card, that evidences that the clearance has been issued to the person.
  1. [38]
    The Tribunal is not administering the statutory scheme, and is not the authority to make or issue documents under the Act.
  2. [39]
    The pertinent decision is found in s 92(2): the correct and preferable decision as to whether or not the person poses unacceptable risk. Under this decision pathway, satisfaction as to unacceptable risk of harm is determinative of the outcome. It seems also clear to me that the state of satisfaction must be objectively based. It is a question of fact.[18]
  3. [40]
    This was the approach adopted by Member Goodman in Devon v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships (‘Devon’).[19]
  4. [41]
    Section 92 requires the decision maker to reach a binary state of satisfaction one way or another.[20] That satisfaction is informed by s 93(2)(b) using the term “real and appreciable risk” while not requiring satisfaction of a likelihood of causing harm. This is contextualised by a paramount consideration within Pt 5 (Disability worker screening and related requirements):[21]

41 Paramount consideration

The paramount consideration in making a decision under this part is the right of people with disability to live lives free from abuse, violence, neglect or exploitation, including financial abuse or exploitation.

  1. [42]
    In RPG v Public Safety Business Agency [2016] QCAT 331, Carmody J analogously determined that in blue card matters (worker screening for those working with children) the Tribunal’s power refers to whether there is an ‘exceptional case’ but not the administrative consequence that a blue card should issue.
  2. [43]
    HRE ultimately seeks NDIS clearance under s 98. Prerequisite to that, the decision maker must be satisfied the person does not pose an unacceptable risk of harm to people with disability under s 92(2)(a). Sections 98(1)(a) and (b) would then provide for the administrative acts of issuing a notice and a clearance card.
  3. [44]
    The determination of clearance and its corollary, an exclusion, are described (relevantly to this matter) in ss 50-51:
  1. 50Meaning of clearance and types of clearances
  1. (1)
    A clearance is a declaration, issued by the chief executive to a person, that—
  1. (a)
    screening of the person has been conducted under this part; and
  2. (b)
    the person is permitted to carry out disability work.
  1. (2)
    An NDIS clearance is a clearance issued to a person who made an NDIS worker screening application.

…

  1. 51Meaning of exclusion and types of exclusions
  1. (1)
    An exclusion is a declaration, issued by the chief executive to a person, that—
  1. (a)
    screening of the person has been conducted under this part; and
  2. (b)
    the person is excluded from carrying out disability work.
  1. (2)
    An NDIS exclusion is an exclusion issued to a person who made an NDIS worker screening application.

…

  1. [45]
    Absent the prescribed factors in ss 89-91, risk assessment by the chief executive is required of HRE.[22] The Tribunal does not (and cannot) independently undertake a risk assessment or screening such as gathering primary evidence and analysis. It turns attention to whether the material supports a rational conclusion one way or another for the purposes of s 92(2).[23] As noted in Devon at first instance, the Tribunal must assess the risk to make its finding.[24] It does so by reference to the information and analysis given to the Tribunal in evidence, acting objectively.
  2. [46]
    As noted in Griggs v Department of Human Services,[25]

the conduct of a NDIS worker check risk assessment is an administrative process in the nature of an inquiry about the applicant’s past behaviour and the risks to people with disability that are likely to flow from that behaviour. The inquiry is entirely protective.

  1. [47]
    The scheme of the Act demands precise analysis. Do the information, and the Applicant’s submissions responding to the show cause notice, satisfy the decision maker the Applicant poses, or does not pose, unacceptable risk of harm to persons with disability? This is true even superficially dramatic information might, on precise analysis, show there is not unacceptable risk.
  2. [48]
    QN v Department of Communities, Disability Services and Seniors[26] is an example of the precision of analysis required. The Applicant was on a forensic order under the Mental Health Act 2000 (Qld), the index offences including murder. Member Howe carefully stepped through the evidence and submissions ultimately being satisfied QN did pose the requisite risk.
  3. [49]
    Factors to assess risk include the likelihood of a risk event and its consequences. In this case, the Tribunal’s considerations include: the nature of the offending conduct;[27] time passed since the offending conduct; acts of HRE, or changed circumstances, that might decrease or increase likelihood; protective factors for him such as evidence of intended supportive work environment, supervision and guidance; static (historical) and dynamic (changing) factors; and the reliability of the information.
  4. [50]
    The vulnerability of people with disability is also critical, emphasised by the paramount consideration extracted above.
  5. [51]
    A clearance is not subject to conditions, and operates as a blanket permission to work in the relevant sector. That is, risk assessment is not limited to a circumstance where HRE might work for or with one particular employer or service, and cannot be subject to further requirements.[28]
  6. [52]
    The application of the Briginshaw test to these decisions was considered by Judicial Member McGill SC in Devon v Department of Child Safety, Seniors and Disability Services.[29] I respectfully adopt the learned member’s reasoning here.
  7. [53]
    See also Griggs v Department of Human Services,[30] a useful and comprehensive consideration of the standard of satisfaction under cognate legislation in South Australia.
  8. [54]
    The evidence informing risk assessment in this case included a large amount of ‘supplementary’ material filed on the morning of the hearing, but previously provided by the Respondent to the Applicant in a timely way. The failure to file this information was explained as an administrative error on the part of the Respondent. Leave to file at hearing was granted. To be clear, the material was comprehensively reviewed, occasioning delay in preparing these reasons.

Consideration

  1. [55]
    The following review and analysis steps through each category of information. To be clear the aim is to establish whether the Applicant poses an unacceptable risk on a global basis. While the analysis must be precise, it is not atomistic: too fine analysis risks losing the substance in the detail. That said, a single finding of unacceptable risk on a single point of information would satisfy a decision maker.

Domestic violence

  1. [56]
    The information before the Tribunal referred to the period from June 2018 (first note of substantiated reports of children in need of protection) to February 2019 (‘Closure Report’ from Uniting Care); and information in the DVO application from 2020.[31]
  2. [57]
    The domestic violence history is summarised in the Respondent’s Submissions as follows:
  1. [25]
    Acts of domestic violence, particularly where children are involved, are reprehensible and the impact of such violence upon children is undisputed. The Applicant maintains the nature of the relationship in which the violence was perpetrated was unique and it has since ended, therefore he is no longer at risk of committing further acts of violence. 94(2)(a)The Respondent does not accept that proposition.
  2. [26]
    The circumstances of the conduct were that he was married to a woman with both substance and alcohol abuse issues, she was suffering from bowel cancer and has serious mobility issues, and he became stepfather to her two young daughters. Understandably, things were difficult, and the Applicant maintains there were financial strains adding to those difficulties. In response to these stressors, the Applicant engaged in verbal and physical abuse of his former spouse and her children when he was angry and frustrated, on occasion, over a period of some four years.
  1. [58]
    The Tribunal agrees with the proposition that the offending conduct is serious.[32]
  2. [59]
    The Applicant notes significant financial pressures, not least because he had ceased work to care for his ill wife, and that she had resumed smoking and was abusing alcohol, placing added financial pressure. He described the incident as one in which D was intimidating him; he responded by grabbing her around the neck. He immediately released her and left, aware that his conduct was offensive. Police were involved, he says, because D was concerned for his welfare, and not for her protection. Regardless, a police DVO issued, later revoked once HRE completed a Relationships Australia domestic violence program.
  3. [60]
    Non-lethal choking or strangulation in a domestic violence context is a criminal offence in Queensland punishable by up to 7 years imprisonment: Criminal Code Act 1899 (Qld) s 315A.[33]
  4. [61]
    The Respondent argues the evidence is of a propensity to domestic violence towards vulnerable persons.[34] While conceding there is no evidence of such behaviour since 2019, it is argued by the Respondent, given the pattern of child safety records in the Supplementary Material, it is likely there were other, unreported and unrecorded incidents of domestic violence in the period 2016-2019. This proposition was not tested in evidence.
  5. [62]
    No charges were laid over the strangulation incident.
  6. [63]
    The current domestic violence order was made on D’s application in 2020 asserting intimidation via telephone, email and social media, and fear that HRE would locate the family and harm them. By then, the couple had separated and were in acrimonious property settlement negotiations. The DVO application asserts, without elaboration, certain acts of physical violence against one of the stepdaughters. HRE’s version of these events is very different. He admits to disciplining the child, but his characterisation is far more benign. This issue was also untested in evidence at hearing.
  7. [64]
    The Respondent notes the intimidatory behaviour alleged in the 2020 DVO application took place after the counselling, informing its submission of propensity.
  8. [65]
    The DVO was made, without admissions, by consent. HRE contends his consent is a positive factor, evidencing insight and a desire to move beyond the fractiousness of that particular relationship; the Respondent says it is indicative of his downplaying the grave circumstances. Neither proposition was probed in evidence.
  9. [66]
    HRE admits to acts of domestic violence.[35] He asserts they were contextual and not indicative of violent propensity. On his evidence the strangulation act was momentary, but he does not, in my view, minimise the seriousness of his acts (despite the Respondent’s contrary submissions).
  10. [67]
    Further, he asserts that family violence is not, of itself, indicative of unsuitability to work in disability services. That proposition goes to the way the risk is assessed. These recent past events are relevant but must be contextualised to assess likelihood of recurrence in a disability services setting.
  11. [68]
    I note that the Disability Services Act prescribes s 315A as a disqualifying offence if committed against a child or vulnerable person but not a serious offence otherwise.[36]
  12. [69]
    The Magistrate made the current DVO on 7 October 2020, current until October 2025.
  13. [70]
    I am satisfied that HRE was violent towards D and at least threatening and frightening towards the children, and was likely intimidatory to them after the separation, though he is now compliant with the terms of the DVO. He no longer has contact with D or his former stepchildren (one of whom is now an adult). He admits in written evidence and orally at hearing that his conduct was unacceptable and inappropriate. He expressed deep regret for that conduct. He maintains this offending behaviour was contextual and referrable to the relationship, its breakdown, and hostility between him and D including over finances and property settlement.
  14. [71]
    The supplementary material reveals that D and her children sought shelter from HRE’s conduct in the home and were frightened by his conduct. However, the material also makes plain HRE was attempting, with assistance, to better manage his response to frustration and his anger. Supportive statements in evidence were untested and weighed accordingly.
  15. [72]
    While these domestic violence events are in the past, they have recency.
  16. [73]
    HRE asserts a personal history of childhood abuse or domestic violence. It is also apparent from the supplementary material that he had, at the time of the domestic violence incidents, serious issues with anger management and frustration.
  17. [74]
    I consider the information reveals that HRE, by the time of this hearing, had mitigated the circumstances of risk by undertaking counselling (albeit limited and not ongoing); his developing insight; his removal from the dysfunctional domestic relationships in which the violent and intimidatory acts took place; and his expression of remorse. The remorse I accept as genuine based on his written and oral evidence, compliance with the DVO, and submissions by Counsel, including against interest, on his behalf and in his presence. I am satisfied that he does not now, on the basis of this information and evidence, pose an unacceptable risk of harm to people with disability.

Child safety complaint

  1. [75]
    The circumstances of the unsubstantiated complaint against HRE by a child in his case load are detailed in the statement of reasons for issuing the exclusion.[37] The Respondent submits as follows:
  1. [24]
    In the circumstances where this complaint was not able to be substantiated, the Respondent does not submit this complaint carries significant weight, although such conduct is obviously relevant to the matters to be considered when determining whether a clearance should be issued, particularly when the complaint was made when the Applicant was working in the area of child safety.
  1. [76]
    I agree with these observations.
  2. [77]
    It is apparent from HRE’s evidence that child protection work presented challenges for him, and those challenges, coupled with the unsubstantiated complaint and his own history of suffering and witnessing childhood abuse, led him to change careers to disability support, a work environment he enjoyed and that has different dynamics. His evidence on this was convincing.
  3. [78]
    While the complaint is relevant, in my view it is not of indicative that he now presents an unacceptable risk of harm to people with disability given the time since the event, his subsequent counselling, and his written and oral evidence about the genesis of the complaint and his present attitude to this area of work. In my view, the change of career from child protection to disability services reflects positively on HRE and his insight.
  4. [79]
    I am satisfied that on the basis of this information and evidence he does not pose an unacceptable risk of harm to people with disability.

Traffic offences

  1. [80]
    The unchallenged evidence of the Applicant was that the speeding offences on his police record were largely or solely the fault of his former wife who was driving his motor vehicle. The unremarkable speeding history since the vehicle was transferred to her name is corroborative of that evidence. I am satisfied on the basis of the speeding history information that he does not pose an unacceptable risk of harm to people with disability.
  2. [81]
    HRE was examined about the carriage offence. His evidence about this incidence was animated, revealing a degree of frustration. He impressed as genuine in his response and maintained composure despite frustration and even resentment at this incident and its ongoing effect on him. On this, HRE impressed as a credible and truthful witness. His explanation of dealing with emergent circumstances assisting a mother with a distressed child was unchallenged, and readily acceptable as true. HRE is unlikely to similarly lapse in future analogous circumstances. I am similarly satisfied on this information that he does not pose an unacceptable risk of harm to people with disability.

Cumulative effect

  1. [82]
    It is open to conclude that the sum of the three classes of information is more than the parts individually.[38] Indeed, the risk assessed across all the domains may be more important than individual domain assessments. That is, the Tribunal’s analysis might favour the Applicant for each individual category of information but be satisfied to the contrary overall.
  2. [83]
    This is because the three categories of information do not operate independently of each other, and the Tribunal must assess whether there are patterns of behaviour that present an unacceptable risk, for example a disregard for the law or professional norms; a cavalier or maladaptive attitude to conflict (here primarily family conflict, but more generally, potential conflict with clients who are challenging or dissatisfied with services); failure to engage properly in personal and professional development; or flaws in judgement or character that give rise an unacceptable risk.
  3. [84]
    It is objectively plain that aspects of HRE’s past conduct and choices were poor. There are unresolved issues about his past, and it would have been helpful if there was better evidence of his engagement with professional help.
  4. [85]
    I have concluded that the domestic violence information is limited to its context and is not indicative that HRE poses a risk for statutory purposes given his history of successful work with people with disability, evidence of his past work in the field, the time since the strangulation event and it being at the low end of this serious offence. The more recent allegations of domestic violence are not of a serious character, and his counselling and developing insight are positive.
  5. [86]
    I similarly concluded that the disciplinary information on its own could not satisfy a decision maker that there is a real and appreciable risk to people with disability. Its main impact was, it seems, to inspire HRE to change career to disability support work where he felt a stronger rapport with clients and was less challenged by dynamics such as removing children from family care and working in bureaucracies. On the basis of the materials and oral testimony, fortified by positive character evidence, I was satisfied there was not an unacceptable risk.
  6. [87]
    Finally, the traffic history was explained to my satisfaction. The speeding offenses are, at least in part, attributable to his former wife; his subsequent traffic record on speeding is good; and the carriage offence was unlikely to recur.
  7. [88]
    It is of note that HRE ceased work in obedience with the law once the ban and exclusion issued;[39] he had complied with the DVO; he exercised his rights in accordance with the law in bringing this application; acted responsibly under guidance of his solicitors and Counsel in these proceedings; and made admissions against interest. These facts assist my understanding that HRE is not cavalier towards his obligations.

Counselling and other professional help

  1. [89]
    The Respondent’s submissions and the reasons for the original decisions note that HRE did not give evidence of comprehensive counselling or other interventions that might satisfy the chief executive positively. The evidence was of relatively minimal work with helping professionals and largely self-reported, although there was some objective third-party information. Carefully considered, I believe there is sufficient evidence for me to be satisfied that HRE accepted and participated in counselling and the counselling forms part of his improved insight and remorse.
  2. [90]
    HRE might benefit from ongoing professional support for his personal and professional development and to address past challenges of managing anger and frustration, the effect of his own childhood trauma and the impact on him of the decision under review.
  3. [91]
    Had HRE produced comprehensive, current and positive reports from mental health professionals there would be little doubt as to his commitment to personal and professional development. Should he continue working with mental health professionals and relevant professional organisations in his personal and professional development, that would stand him in good stead.

Conclusion on cumulative effect

  1. [92]
    The evidence does not reveal patterns of the type discussed above at [83].
  2. [93]
    Given the entirety of the evidence, I am satisfied that HRE does not pose an unacceptable risk to people with disability for the purposes of s 92(2).

Finding

  1. [94]
    For the reasons above, I find that the correct and preferable decision is that the Applicant HRE does not pose an unacceptable risk of harm to people with disability.

Non-publication

  1. [95]
    The Tribunal previously made orders in these proceedings on 31 August 2023 prohibiting publication of information identifying the Applicant, his former spouse or his stepchildren. The order restricted access to documents on the Tribunal file. The parties agreed that those orders should continue, and the Tribunal is satisfied that an order under s 66 of the QCAT Act should continue on the same terms, extended to encompass materials filed after the date of the non-publication order and the identity of witnesses in these proceedings.

Costs

  1. [96]
    The Application sought costs in this review but that was not pursued at hearing. The Disability Services Act does not provide for costs in an external review. Section 100 of the QCAT Act provides that generally parties bear their own costs. Section 102 allows for costs to be awarded in the interests of justice. I have considered the factors listed in s 102(3) and relevant case law.[40] In the circumstances I would not exercise my discretion to award costs.

Disposition

  1. [97]
    The Respondent submitted that in the event I found for the Applicant, the matter should be returned to the Department for reconsideration under s 24(1)(c) of the QCAT Act.[41] By force of s 92(2)(a), this finding means the chief executive must issue a clearance. There is nothing for the Respondent to reconsider.
  2. [98]
    The substantive order that follows adopts and adapts as necessary and relevant the formulation suggested by Carmody J in RPG[42] and the orders made by Member Goodman in Devon.[43]

Orders

  1. [99]
    The decision of the chief executive of the Department of Child Safety, Seniors and Disability Services that HRE poses an unacceptable risk of harm to people with disability within the meaning of s 92(2) of the Disability Services Act 2006 (Qld) is set aside and replaced with the Tribunal’s decision that HRE does not pose an unacceptable risk of harm to people with disability.
  2. [100]
    The non-publication order made on 31 August 2023 prohibiting publication of information identifying the Applicant, his former spouse or his stepchildren and restricting access to documents on the Tribunal files is continued and extended to include the identity of witnesses in these proceedings and materials filed after that original order.

Footnotes

[1] Disability Services Act, s 64.

[2] Ibid, s 130(1)(a).

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss  17(1), 18 and 20 (‘QCAT Act’).

[4] Disability Services Act, s 138ZR(1).

[5] QCAT Act, s 28(3)(b).

[6] Ibid, s 20.

[7] Disability Services Act, s 92(2), and see Devon v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 386.

[8] HRE and D lived in an intimate relationship for 6 months before marrying in April 2016, separating in March 2020. The DVO application, brought in August 2020 was made in October 2020.

[9] Statement filed 1 February 2023.

[10] Exhibit 1 dated 8 February 2024.

[11] Attachment 1 dated 21 December 2021.

[12] see Disability Services and Other Legislation (Worker Screening) Amendment Bill 2020 Explanatory Notes.

[13] Disability Services Act, ss 53-57.

[14] Administrative Arrangements Order (No. 2) 2023 (Qld) p. 33.

[15] [2014] FCA 673.

[16] [2023] SACAT 60. The case usefully discusses risk at [40]-[57].

[17] [2023] QCAT 316.

[18] Contrast s 91(3) incorporating an exceptional circumstances element for applicants with convictions etc. On satisfaction and jurisdictional facts, see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 especially at [1]-[2], [86] and [122].

[19] [2022] QCAT 386.

[20] The Disability Services Act does not state what is to happen should the chief executive not be satisfied one way or another, but it seems tolerably clear that further inquiry and analysis should follow in such a case. If the Tribunal is unable to be satisfied, the matter might be returned to the Department for reconsideration under s 24(1)(c) QCAT Act. In contrast, migration decisions, such as that determined in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, relied on by the Respondent, are singular: cancellation or refusal flow from the fact the Minister is not satisfied the person passes the character test.

[21] Thus the bar is set low.

[22] E.g. Devon v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 386 [43]; appeal dismissed Devon v Department of Child Safety, Seniors and Disability Services [2024] QCATA 7.

[23] If the material is inadequate for the purpose of making the correct and preferable decision, the Tribunal may return the matter to the decision-maker under QCAT Act s 24(1)(c).

[24] Devon v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 386 [40].

[25] [2023] SACAT 60 [56](a). Footnotes omitted.

[26] [2020] QCAT 115.

[27] The term used in s 94(2)(a) of the Disability Services Act.

[28] Contrast various other professional registration schemes.

[29] [2024] QCATA 7, [25] and following.

[30] [2023] SACAT 60, especially at [77].

[31] Supplementary Information pp. 3-20.

[32] Respondent’s Submissions 29 February 2024, [23].

[33] Section 135A commenced on 5 May 2016.

[34] Respondent’s Submissions 29 February 2024, [48].

[35] Contrast Queensland College of Teachers v Teacher VNA [2024] QCAT 113.

[36] Sch 4 and sch 2 respectively.

[37] Par. 8.1 at p. 9 of 25.

[38] See Respondent’s Submissions [5] and [37].

[39] Noting his evidence that he had lost his job because of his commitments to care for his ill wife and attend to one of her daughters’ misconduct: Applicant’s statement attachment 1, [30], [34] and following.

[40] For example, Marzini v Health Ombudsman (No 4) [2020] QCAT; Graham v Queensland Racing Integrity Commission (Costs) [2023] QCATA 97; SCA v Commissioner of Police [2024] QDC 57 and cases discussed therein, albeit under a different statutory scheme.

[41] Respondent’s Submissions [61].

[42] RPG v Public Safety Business Agency [2016] QCAT 331 [28].

[43] Devon v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 386.

Close

Editorial Notes

  • Published Case Name:

    HRE v Chief Executive, Department of Child Safety, Seniors and Disability Services

  • Shortened Case Name:

    HRE v Chief Executive, Department of Child Safety, Seniors and Disability Services

  • MNC:

    [2024] QCAT 221

  • Court:

    QCAT

  • Judge(s):

    Member Bridgman

  • Date:

    26 May 2024

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
Devon v Department of Child Safety, Seniors and Disability Services [2024] QCATA 7
2 citations
Jump To
Cite 1 - [2024] QCATA 7
Cite 2 - [2024] QCATA 7
Devon v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 386
6 citations
Jump To
Cite 1 - [2022] QCAT 386
Cite 2 - [2022] QCAT 386
Cite 3 - [2022] QCAT 386
Cite 4 - [2022] QCAT 386
Cite 5 - [2022] QCAT 386
Cite 6 - [2022] QCAT 386
Graham v Queensland Racing Integrity Commission (Costs) [2023] QCATA 97
1 citation
Jump To
Cite 1 - [2023] QCATA 97
Griggs v Department of Human Services [2023] SACAT 60
4 citations
Jump To
Cite 1 - [2023] SACAT 60
Cite 2 - [2023] SACAT 60
Cite 3 - [2023] SACAT 60
Cite 4 - [2023] SACAT 60
JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2023] QCAT 316
2 citations
Jump To
Cite 1 - [2023] QCAT 316
Cite 2 - [2023] QCAT 316
Minister for Immigration and Citizenship v SZMDS (2010) HCA 16
2 citations
Jump To
Cite 1 - (2010) HCA 16
Cite 2 - (2010) HCA 16
QN v Department of Communities, Disability Services and Seniors [2020] QCAT 115
1 citation
Jump To
Cite 1 - [2020] QCAT 115
Queensland College of Teachers v Teacher VNA [2024] QCAT 113
2 citations
Jump To
Cite 1 - [2024] QCAT 113
Cite 2 - [2024] QCAT 113
RPG v Public Safety Business Agency [2016] QCAT 331
3 citations
Jump To
Cite 1 - [2016] QCAT 331
Cite 2 - [2016] QCAT 331
Cite 3 - [2016] QCAT 331
SCA v Commissioner of Police(2024) 4 QDCR 55; [2024] QDC 57
1 citation
Jump To
Cite 1 - [2024] QDC 57
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
3 citations
Jump To
Cite 1 - [2014] FCA 673
Cite 2 - [2014] FCA 673
Cite 3 - [2014] FCA 673

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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