JCA v Director-General, Department of Justice and Attorney-General
[2024] QCAT 250
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- JCA v Director-General, Department of Justice and Attorney-General[2024] QCAT 250
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JCA v Director-General, Department of Justice and Attorney-General[2024] QCAT 250
JCA v Director-General, Department of Justice and Attorney-General[2024] QCAT 250
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | JCA v Director-General, Department of Justice and Attorney-General [2024] QCAT 250 |
PARTIES: | JCA (applicant) v Director-General, Department of Justice and Attorney-General (respondent) |
APPLICATION NO/S: | CML400-21 |
MATTER TYPE: | Children’s matters |
DELIVERED ON: | 28 May 2024 |
HEARING DATE: | 24 November 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Burson |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – BLUE CARD – application to review a negative notice – whether sufficient time since offending – 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 Working with Children (Risk Management and Screening) Act 2000 (Qld) Human Rights Act 2019 (Qld) Re FAA [2006] QCST 15 Chief Executive Officer, Department of Child Protection v Grindrod (No 2) (2008) WASCA 28 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | L. Hailstones, Legal Officer |
REASONS FOR DECISION
Background
- [1]This is an application for a review of a decision by the Director-General, Department of Justice and Attorney-General made on 2 December 2021 to confirm a negative notice issued to the Applicant.
- [2]On 7 December 2021 the Applicant applied for a review of the decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) to issue a negative notice on 6 December 2021.
The ‘Blue Card’ legislative framework
- [3]Employment screening for child-related employment is dealt with in chapter 8 of the WWC Act. The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.
- [4]
- [5]As applicable to this case, the Act requires that a blue card must be issued unless the Chief Executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[4]
What is meant by ‘exceptional case’?
- [6]What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
- [7]Section 226(2) of the WWC Act sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]
- Whether it is a conviction or charge;
- Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
- When the offence was committed;
- The nature of the offence and its relevance to employment that may involve children; and
- In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
- [8]Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
- [9]The application of the WWC Act is intended to put boundaries around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]
Evidence relied upon by the Respondent
- [10]The evidence from the Respondent is summarised as follows:
- JCA has a lengthy criminal history spanning from 2004 until 2016. The history includes breaches of domestic violence orders, possession of dangerous drugs, possession of suspected stolen property, breaches of probation and breaches of suspended sentence.
- The Respondent relies on:
- reasons for decision to issue a negative notice (26.1.2014);
- reasons for refusing to cancel a negative notice (2.12.2021);
- criminal history and supporting information;
- material from previous QCAT matter;
- summary of domestic violence orders and conditions;
- transcripts of sentencing remarks;
- police reports of the offending behaviour of the Applicant;
- material produced by Department of Transport and Main Roads;
- material produced by the Queensland Police Service.
- [11]The Respondent also provided oral and written submissions to this Tribunal, which have been of assistance to the Tribunal.
The Applicant’s evidence and submissions
- [12]The Applicant provided the Tribunal with comprehensive material, including the following:
- a life story dated 5 January 2022 and
- five supportive statements by colleagues and family; and
- a report from JCA’s treating clinical psychologist.
- [13]The Applicant gave evidence at the hearing and was cross-examined by the representative of Blue Card Services.
- [14]The Applicant’s witnesses including family members, a family friend and his clinical psychologist provided evidence at the hearing and these witnesses were cross-examined.
Is this an exceptional case?
- [15]The factors in section 226(2) of the WWC Act are the factors that must be considered in making a decision about whether this is an exceptional case.
- [16]In terms of the level of satisfaction required to meet section 221(2) of the WWC Act, it has been accepted that while certainty is not required, the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[9]
- [17]The factors which must be observed and that I consider relevant are:
Is the offence a conviction or a charge?
- [18]The Applicant has convictions spanning a thirteen (13) year period. The most serious offending lead to a six (6) month term of imprisonment, in which JCA was suspended for two years and received a suspended term of imprisonment. JCA’s offending behaviour ended with a final possession of a dangerous drug on 7 November 2015, a period nearly nine years ago.
- [19]It is an evaluation of risk that the Tribunal must undertake in this review. As noted in Chief Executive Officer, Department of Child Protection v Grindrod (No 2).[10]
Is the offence a serious offence and if it is, whether it is a disqualifying offence.
- [20]The offences the Applicant was charged with are not classified as serious offences or disqualifying offences for the purposes of the WWC Act.
When the offence was committed or is alleged to have been committed.
- [21]The Applicant’s offending behaviour covered an approximately thirteen (13) year period.
The nature of the offence and its relevance to employment that may involve children
- [22]JCA’s offending behaviour has mainly consisted of possession of dangerous drugs. There is one matter in 2007, possession of a knife in a public place or school, that has a connection with children. It is noted that this offence took place in 2007, there has been no repeat and JCA received a $450.00 fine.
In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for decision
- [23]JCA’s most serious offending related to possession of a dangerous drug exceeding 500grams for which he was sentenced in the District Court at Brisbane in 2014. Magistrates Court-level offences were also taken into account during JCA’s sentencing.
- [24]The Tribunal has taken into account the sentencing remarks of Her Honour Judge Wolfe making note of JCA’s previous drug offences.
- [25]JCA was also sentenced for a small amount of possession during the currency of his suspended sentence. The sentencing remarks of Magistrate Cull are positive and note that this was a “serious glitch”. It was also noted in the remarks that JCA’s previous partner and mother of his child outlined her support.
Other relevant circumstances
- [26]The Applicant admitted to the offending behaviour in his criminal history.
- [27]The Applicant outlined a long history of trauma, including the death of his mother in his teens and the history of violence towards him from his father. This was separately attested to quite strongly by his aunt and uncle. JCA’s aunt, a professional in the medical field, provided a passionate outline of the history of trauma that contributed to JCA’s previous offending behaviour.
- [28]The Applicant’s family and friends remain supportive of the Applicant. The Applicant has strong support and family ties, particularly to his maternal family.
- [29]The Tribunal had the assistance of JCA’s clinical psychologist, Dr H, who was cross-examined at length. Dr H provided evidence to the Tribunal of JCA’s continued abstinence from cannabis dependency. Dr H outlined JCA’s treatment at the Princess Alexandra Hospital’s drug and alcohol program. JCA attends upon Dr H when his funds permit.
- [30]JCA also presented evidence from a long-time family friend who outlined the history of trauma with his father and noted his recovery from cannabis dependency.
- [31]It is clear that the Applicant has supportive family and friends who all gave positive evidence regarding the Applicant and his character.
- [32]JCA has a history of Domestic Violence Protection Orders. It is noted that a protection order naming his father as a protected person at a time when JCA was a young man, during the Christmas period, shortly after the loss of his mother. JCA had attended the family home against the wishes of his father.
- [33]JCA also had a Domestic Violence Protection Order naming the mother of his child as the aggrieved. The context of the order was against a background of verbal abuse, when his child was an infant. There have been no further orders and his child is now approximately 11 years old.
- [34]Domestic Violence is a serious scourge on our society and the Tribunal has given this evidence great weight.
- [35]I am not required to outline all the evidence provided to the Tribunal in this decision, I have carefully considered all the BCS and NTP material provided to the Tribunal including the two statements of reasons of “Blue Card Services”.
- [36]The Applicant’s last offending behaviour was in 2016, this was a period of approximately eight (8) years ago.
- [37]The Applicant has worked with his clinical psychologist and did not attempt to minimise his offending behaviour. The statement of reasons noted that JCA engaged with services ‘relatively recently’. It is noted that he commenced with his psychologist in 2022, although he had previously attended Drug and Alcohol treatment in 2016.
- [38]JCA has not committed any further offending since 2016, he has undertaken drug and alcohol treatment and he has commenced professional assistance with a clinical psychologist. The majority of offending has been in relation to cannabis substance abuse including possession of cannabis in a large amount, in excess of 500 grams.
Conclusion
- [39]I have weighed all the matters in section 226(2) of the WWC Act and the other circumstances. I have considered all the evidence in this matter. I have reached the conclusion that this is not an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued.
Non-Publication Order
- [40]I order that the publication of the Applicant’s name and witnesses be prohibited other than to parties to the proceeding pursuant to section 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
- [41]I also order, pursuant to section 66(1)(a) of the QCAT Act that the publication of documents filed by the parties in this proceeding is prohibited save as was necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these proceedings.
Footnotes
[1] WWC Act, s 5.
[2] Child related employment decision is defined to include a chapter 8 reviewable decision; WWC Act, s 358.
[3] WWC Act, s 360. See also section 6.
[4] Ibid, s 221.
[5] Re FAA [2006] QCAT 15, [22].
[6] WWC Act, s 228(2)(a).
[7] WWC Act, s 228(2)(f).
[8] Re FAA [2006] QCAT 15, [29] citing the second reading speech Commissioner for Young Children and Young People Bill, p 4391.
[9] [2004] QCA 491, [30].
[10] (2008) WASCA 28, [28].