FZ v Director-General, Department of Justice and Attorney-General
[2024] QCAT 316
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- FZ v Director-General, Department of Justice and Attorney-General[2024] QCAT 316
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FZ v Director-General, Department of Justice and Attorney-General[2024] QCAT 316
FZ v Director-General, Department of Justice and Attorney-General[2024] QCAT 316
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | FZ v Director-General, Department of Justice and Attorney-General [2024] QCAT 316 |
PARTIES: | FZ (applicant) v Director-General, department of Justice and attorney-general (respondent) |
APPLICATION NO/S: | CML264-22 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 1 August 2024 |
HEARING DATE: | 22 November 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Munasinghe |
ORDERS: |
is prohibited. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant sought a review of the respondent’s decision to issue him with a negative notice – where applicant committed a ‘serious offence’ – where applicant also had an extensive but dated criminal history of offences involving violence and domestic violence – where Tribunal found the applicant’s contention that he pleaded guilty to domestic violence offences for the sake of convenience and expediency to be implausible – where the Tribunal found there was no exceptional case. Criminal Code Act 1899 (Qld), s 419 Human Rights Act 2018 (Qld), s 13, s 22, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 225, s 226, s 228 Cabal v United Mexican States (2001) 180 ALR 593 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 30 Commission for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Kent v Wilson [2000] VSC 98 Kracke v Mental Health Review Board v Ors (General) [2009] VCAT 646 PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188 PJB v Melbourne Health [2011] VSC 327 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | C Davis, Legal Officer |
REASONS FOR DECISION
Introduction
- [1]FZ (a pseudonym), applies to the Tribunal to review a decision of the Director-General, Department of Justice and Attorney-General (‘DJAG’), to issue him with a negative notice following his application for a working with children clearance (‘clearance’).
Background Facts
- [2]On 17 July 2001, the Goondiwindi Magistrates Court convicted and sentenced FZ for the offence of ‘Enter Dwelling with Intent at Night’ under s 419(1) and (3)(A) of the Criminal Code Act 1899 (Qld). That offence is defined as a ‘serious offence’ in the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).[1]
- [3]FZ also committed four offences alongside the serious offence (contemporaneous offences). They were:
- Common Assault.
- Assault Occasioning Bodily Harm.
- Wilful Damage; and
- Breach of Domestic and Family Violence Order (x 2).
- [4]In addition to the offences above, FZ has a substantial, but dated, criminal history of offences committed between December 1989 and May 2007. Much of that offending involved acts of violence and domestic violence. DJAG furnished the Tribunal with FZ’s criminal history and various court briefs containing particulars of his alleged offending (‘police records’). The Registrar of the Goondiwindi Magistrates Court and the Director-General, Department of Children, Youth Justice and Multicultural Affairs provided the Tribunal with documents respectively containing information about FZ’s domestic violence history (‘DV records’) and child protection history (‘CP Records’).
- [5]Notably, FZ was the respondent to Domestic and Family Violence orders (‘protection orders’), in respect of three different women. I have assigned to those women the pseudonyms A, B and C. FZ pleaded guilty to breaching several of those protection orders.
- [6]FZ subsequently applied for clearance under the WWC Act. Because FZ was convicted of a ‘serious offence’, DJAG was required to issue him with a negative notice unless it was an ‘exceptional case’ in which it would not harm the best interests of the children for FZ to be issued with a clearance.[2]
- [7]On 18 March 2022, DJAG issued FZ with a negative notice. In brief compass, DJAG considered that FZ’s lengthy criminal history, the severity of the serious offence, and the absence of insight into his offending were reasons why his case was not exceptional within the meaning of s 225 of the WWC Act.
Primary Issue
- [8]The decision that the Tribunal must make in this review is whether, upon becoming aware that FZ committed a serious offence, it is satisfied it is an exceptional case in which it would not harm the best interests of children to issue FZ with a clearance.[3] If the Tribunal is satisfied that there is no exceptional case, it must confirm DJAG’s decision to issue FZ with a negative notice.
Relevant Law
- [9]The purpose of the Tribunal review is to produce the ‘correct and preferable decision’.[4] For the review, the Tribunal stands in the shoes of the decision maker and makes its decision by way of a ‘fresh hearing on the merits’.[5] The review of a child related employment decision is to be undertaken under the principle that the ‘welfare and best interests of a child are paramount’.[6] This is the consideration ‘to which all others yield’.[7]
- [10]What amounts to an ‘exceptional case’ is not defined in the WWC Act. In GSC v Director General Department of Justice and Attorney-General [2023] QCAT 447, I set out the principles relevant to deciding what is an ‘exceptional case’. I have reproduced those principles below:
- it is to be accepted that phrases like ‘exceptional case’ must be considered in 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.[8]
- to conclude it is an exceptional case there must be factors that are unusual and extraordinary.[9]
- it would be most unwise to lay down any general rule about what is an exceptional case; all these matters are matters of discretion.[10]
- correctly stated, the discretion to be exercised by the Tribunal, on review, is unfettered by any general rule in considering the relevant factors to determine whether in all the circumstances it is in the best interests of children for a positive notice to be issued.[11]
- it is not possible to state with precision the circumstances that might render a case exceptional. To conclude it is an exceptional case there must be factors that are unusual and exceptional.[12]
- what constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[13]
- neither party bears an onus in determining whether an exceptional case exits.[14]
- [11]The standard of proof to which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. Concerning that standard, in the Commissioner for Children and Young People and Child Guardian v Maher & Anor,[15] the Queensland Court of Appeal relevantly stated, at [29]:
the Tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.
Circumstances of the serious offence and the contemporaneous offences
- [12]Deciding whether an exceptional case exists necessarily requires a detailed examination of the circumstances surrounding the commission of the serious offence. FZ committed the serious and contemporaneous offences against his former partner B. The circumstances of the offending were:
- On 6 July 2001:
- (i)during a telephone conversation, FZ threatened B by telling her that if she had a relationship with anyone else “she would be sorry”.
- (ii)during a telephone conversation, FZ threatened B by telling her he was going pig hunting that night and if he came into town and saw her with anyone he would “start dropping cunts”.
- (i)
- On 7 July 2001:
- (i)FZ entered B’s house uninvited. He walked into her bedroom, called her derogatory names, then placed his clenched fist on her mouth. Then he pushed his fist down on her lips and teeth, which forced B into her bed. B gagged and couldn’t breathe. FZ threatened to kill B and called her derogatory names.
- (ii)FZ grabbed B’s shirt and bounced her up and down on the mattress. He pulled her into a seated position and shook her violently. Then he pushed her off the bed and punched her in the right cheek.
- (iii)FZ continued to push B down into the bed. At one point half of her body slid off the bed, causing her neck to touch the floor. FZ proceeded to strangle B. The pressure on her neck prevented B from yelling out.
- (iv)When police arrested FZ and questioned him, he denied assaulting B. He admitted to grabbing her arm because he feared she was going to hit him. At the Tribunal hearing, FZ provided a different version of the incident. He admitted to pushing B but denied punching her.
- (i)
- On 6 July 2001:
FZ’s domestic violence history
- [13]Previously, in May 2000, FZ attempted to commit suicide by hanging himself in B’s presence. When she arrived home, he stood on a drum under their house, placed a noose around his neck and jumped. B had to cut FZ down and call an ambulance. FZ previously told B that he was going to kill himself if he ‘couldn’t have her to himself’.
- [14]B was not the only woman FZ strangled. On 4 May 2007, he strangled a second woman with whom he was in an intimate relationship. Her name was C. During that incident, police allege FZ grabbed C by the neck and choked her. At the time, there was a protection order prohibiting FZ from going within 50 meters of C’s house. When police arrested FZ, he admitted to what he had done. Police charged FZ with breaching a protection order, a charge that he pleaded guilty to in the Goondiwindi Magistrates Court.
- [15]FZ has a long history of being respondent to domestic violence protection orders. A protection order application dated 25 December 2005 alleged:
- on 24 December 2005, FZ raised his fists towards B, picked up a deodorant can and threw it at her. The can struck her forearms. B suffered bruising and soreness. FZ also kicked the front door of B’s car, causing a dent.
- on 25 December 2005, FZ attended the B’s house because he was angry that she had not visited him for Christmas. FZ threw B’s digital camera on the ground. He punched her car’s front passenger window causing it to shatter. When police questioned FZ he admitted that he ‘lost his nana’ and damaged the vehicle rather than hurt B. When police spoke to B, she told them that FZ was a ‘jealous person’ and ‘becomes emotional and aggressive on a regular basis’.
- on 9 January 2006, a Magistrate in Goondiwindi made a protection order naming FZ as the respondent. On 4 June 2007, the order was varied to permit FZ to go within 50 meters of B and be at her work or residence. B later claimed that FZ coerced her to consent to that variation.
- [16]An application for a protection order dated 11 November 2008 alleged that FZ approached A (with whom he has a 15-year-old son) and threatened to fight her and take their son by force. On 5 January 2009, a Magistrate in Goondiwindi made a protection order in A’s favour.
- [17]In an application for a protection order dated 22 October 2010, B alleged:
- in January 2010, whilst returning from hospital, FZ punched an open wound in her chest where an implantable cardioverter defibrillator was implanted. Consequently, B was hospitalised for four days. FZ threatened to hurt her family if she told anyone about the assault.
- in June 2010, FZ threw a mobile phone at B. Further, he abused her over the telephone, called her names and threatened to ‘get her’.
- in July 2010, FZ threatened B and her new partner with violence.
- on 8 October 2010, FZ pulled up beside B whilst she was dropping a client at their house. Further, he called her repeatedly throughout the afternoon. When she didn’t answer he left a message threating to bash her new partner.
- in April 2010, B reported FZ to child safety for beating and emotionally mistreating his 16-year-old son.
- FZ threatened to put B and any person she was seeing ‘in the ground’. He also threatened to bash her intellectually disabled 16-year-old nephew.
- FZ threated to slit her throat from ear to ear and let her ‘bleed like a pig outside’.
The hearing
- [18]The review application proceeded to a hearing on 23 November 2023. FZ told the Tribunal that he has a “beautiful wife, children, and friends”. He has been married to his wife H for 11 years. They have been together for 13 years and have two children who are aged 11 and 13. FZ contended that there have not been any incidents of domestic violence during their relationship. His wife is “everything he could ever wish for”. He now lives an ordinary life. After meeting H, he also spends more time with his older children.
- [19]FZ said that his first meaningful relationship was with A, who he met when he was “very young”. They had a son named D. He was with A for about two years. Then he met B, who he was with for about ten years “on and off”. His relationship with B was toxic and consumed by conflict.
- [20]FZ is gainfully employed at a farm which he lives on with his family. He has “lots to do with the community” and devotes much of his time to coaching the senior league at the Inglewood Rugby League Football Club. He wants to “give back to kids” and “help them excel in life”.
- [21]FZ accepted that he made “mistakes” and that some patches of his life “have not been good”. However, he insisted that he changed the course of his life by removing himself from the toxic relationship with B. When he was with B, he “turned his back” on friends and “didn’t listen to the people he should have”. Now, he is a good role model to his children and their friends.
- [22]Concerning the serious offence, FZ denied breaking into B’s house. He claimed that he entered her house through a sliding window which B’s son left open. FZ denied striking B or injuring her. He admitted pushing B away after she “got stuck into him”. FZ claimed he acted in self-defence, however at Court he pleaded guilty and just “took (the charges) on the chin”. He asserted that he should have fought the charges. He is “paying for it now”. At court he “probably agreed” that he struck B to get the sentence hearing over and done with”. He pleaded guilty to all the facts that the police alleged.
- [23]When cross examined by DJAG’s representative, FZ denied engaging in previous instances of domestic violence. He admitted only to arguing with B. FZ reiterated that he “pleaded guilty to a lot of a stuff that he shouldn’t have pleaded guilty to”.
- [24]FZ denied telling previous partners that he intended to harm himself, or that he had previously engaged in any coercive or threatening behaviours. He denied grabbing B by the throat or choking her. FZ expressed regret about continually resuming his relationship with B.
- [25]Concerning specific allegations in the police material, FZ:
- could not remember whether he has thrown anything at a former partner. He did not think he had;
- denied breaking the belongings of a former partner;
- denied committing violence on A, B or C;
- accepted that, where a police brief stated that FZ told police officers certain things, he “probably did say them”;
- concerning his charge of ‘Behave in a disorderly manner’ committed on 9 April 1993, he accepted that he fought with another man;
- concerning his charge of assault occasioning bodily harm (‘AOBH’) committed on 25 September 1993, FZ accepted that he fought with another man. He admitted dragging the man outside, and punching him several times, but denied kicking him. He would not kick anyone, because he considers it “a low act”. However, he conceded he “probably told the police he kicked the complainant”;
- concerning his charge of AOBH committed on 9 February 1996 he “probably” headbutted the complainant. He admitted punching the complainant several times;
- FZ denied intimidating B to vary the conditions of a protection order;
- he does not get angry now. If he has a “bad day”, he goes home to his family and talks to his mates. B constantly “punched the piss out of him”;
- concerning the charge of wilful damage committed on 7 July 2001, which related to breaking B’s vase, he cannot recall what happened. He did not trash B’s place. He denies telling police that he could not control his obsession with B;
- concerning the allegation he committed domestic violence on 11 November 2008, FZ denied sending A messages, acting aggressively towards her, or threatening to take their son D by force;
- FZ denied all the allegations raised in a notification made to Child Safety on 28 April 2010, namely:
- (i)that he punched his son in the chest.
- (ii)that he physically disciplined his son.
- (iii)that he yelled abuse at his son and called him vulgar names.
- (i)
- [26]In respect of all the domestic violence allegations raised in the material filed in the Tribunal, FZ only accepted that he engaged in verbal arguments and pushed B in self-defence.
- [27]At the hearing, FZ disagreed with the proposition that he did not call D as a witness because the evidence D would give would be unfavourable to him. FZ claimed that he was not trying to “hide anything”. It did not “enter into his mind” to call D as a witness.
- [28]In post hearing written submissions, FZ submitted:
- he is an ideal person to guide young people precisely because he has done the ‘wrong thing’ but turned his life around;
- he deserves a second chance at life because he has not reoffended for over ten years;
- he has the utmost respect for the law and the police. It is wrong to judge him for a situation that occurred ‘so long ago’;
- he will not receive a monetary gain if given a clearance. Rather, he will benefit from a sense of community, fulfilment, and friendship. He enjoys involving himself in community groups, and “giving back” to a community that has ‘been there for him’.
FZ’s Character Witnesses
- [29]At the hearing, FZ called several witnesses to attest to his good character. They were DB, JM, HP and SP. Each of those witness also furnished the Tribunal with written character references.
- [30]DB is the President of the Inglewood Rugby League Football Club. Concerning what she knows about FZ’s domestic violence history, she has “heard things” but “doesn’t believe everything she hears”. B was “trouble”. She opined that “things could be misconstrued”. The allegations were “hearsay on both sides”.
- [31]DB was not aware that FZ was the respondent to protection orders: he only told her about that on the day of the hearing. Moreover, he only told her about the domestic violence allegations raised by B, not others. In any case, her views about FZ’s good character would not change.
- [32]She has observed FZ to be ‘restrained’ at football matches in circumstances where other teams have “provoked him”. She deposed to observing FZ defuse tense situations. In her opinion FZ has “taken on responsibility”. He shows leadership and respects his wife. Players on the football team respect him. Ms Bennett mentioned a particular occasion when FZ provided emotional support to two young players whose father was violently killed. The ages of players at the club varies. They are all adults, but some players are as young as 19. Ms Bennett conceded that she had not read DJAG’s reasons for refusing FZ’s clearance.
- [33]JM has been FZ’s good friend for twenty years. She considers FZ a man of great integrity and honesty. She lauded his commitment to ‘community’ and the Inglewood Junior Rugby League team. She knew FZ had a conviction for one domestic violence offence but was unsure of the details. She described FZ’s relationship with B as “active and reactive”. B had multiple partners and there are a few men in “the same predicament” as FZ.
- [34]FZ’s most ardent supporter at the hearing was his wife HP. She has been married to FZ for eleven years and they have been together for thirteen. They have two children together, both of whom are in primary school. HP deposed that that FZ had never committed any acts of domestic violence on her or made her feel unsafe. She described her homelife as ‘positive’.
- [35]Under cross examination, HP denied that she would not say anything negative about FZ because she was married to him, or because she works for his sister-in-law SP. HP has never observed FZ to be quick to anger. He has never threatened her or called her names. He has no concerns with her male friends and does not restrict her access to them.
- [36]FZ described a particular incident in September 2023, when her son was knocked unconscious after crashing his motorbike. He was airlifted to Brisbane and placed in intensive care in a comatose state. Doctors told HP that her son had several brain bleeds, a dislocated shoulder, a bruised heart, and lungs, cracked ribs and a compound fracture in the left femur. There was uncertainty about whether he would suffer brain damage or even wake up. The situation was “confronting and upsetting”. She was “falling apart” and could not have “held it together” without FZ who was “very cool and calm”. Her son was very distressed after waking from his coma. He would thrash and scream. FZ would sit with him all night for a period of about two weeks. There were two days that were particularly bad.
- [37]The Tribunal heard from SP. She is FZ’s sister-in-law and has known him for over 30 years. She has observed FZ express remorse and regret for his poor decisions and behaviours. SP considers FZ to be a committed husband and father to HP and his children. She contends that FZ is calmer and more patient when heated situations arise. SP professes to being present at most of FZ’s past indiscretions. However, during cross examination she conceded that she was not sure about what FZ pleaded guilty to in the past. Nor was she aware of any protection order made against FZ.
- [38]Lastly, FZ relies on a written character reference by Elizabeth Holland. She was not available to give oral evidence to the Tribunal. Elizabeth Holland has known FZ for 30 years and purports to be aware of his criminal history. She considers FZ to be a ‘reformed man’ who has changed his past behaviour. She is aware FZ participates in the local community, particularly the development and running of community sport. She opined that the community would benefit if FZ is granted a clearance.
Consideration
- [39]FZ steadfastly denies committing domestic violence despite pleading guilty to assaulting B several times, strangling her and damaging her property, and strangling C. The specific acts of domestic violence that police allege FZ committed against A, B and C, are strikingly similar, which leads me to conclude that the acts more likely than not did occur. Further, I find implausible FZ’s assertion that he pleaded guilty to domestic violence offences for the sake of convenience and expediency. Accordingly, where FZ admits to committing domestic violence in police or DV records, I accept as true the factual narrative contained within the record.
- [40]My impression of FZ from those records, is that he was a controlling, manipulative and violent man, who had a proclivity for targeting women. In addition to perpetrating actual violence on A, B and C, his conduct would, in a modern context, be understood to amount to ‘coercive control’. Whilst societal attitudes towards domestic violence are now more enlightened than they were in the nineties, and at the turn of the century, the passage of time does not diminish FZ’s culpability for the deplorable way he treated his former intimate partners during that time.
- [41]Most concerningly, throughout the hearing FZ persistently denied and minimised his behaviour. He was apt to engage in victim blaming. FZ expressed more regret about the perceived price he was now paying for resuming his relationship with B, rather than the impact of his violence on her. Although FZ professes to being a changed man, his persistent minimising of his offending and the absence of any remorse, causes me to doubt the sincerity of that assertion.
- [42]FZ’s character witnesses do not assist his cause. Collectively, I found their evidence of limited value. None had a detailed knowledge of FZ’s criminal and domestic violence history. What is more, DB and JM appeared to share FZ’s proclivity to victim blame. Their evidence gave me the impression that they believed B’s allegations were untrue or exaggerated, and that her infidelity justified FZ’s conduct.
The application of sections 226(2) and 228 of The WWC Act
- [43]Additionally, I have considered matters the Tribunal is required to have regard to under sections 226(2) and 228 of the WWC Act. Concerning s 226(2):
- FZ was convicted of offences which are set out in a criminal history that has been filed as evidence in the proceeding;[16]
- FZ committed the offence of ‘Enter Dwelling with Intent at Night’ under s 419(1) and (3)(A) of the Criminal Code Act 1899 (Qld), which the WWC Act defines as a ‘serious offence’.[17] The remaining offences on FZ’s criminal history are not serious offences.
- FZ committed the serious offence on 7 July 2001.
- Plainly, FZ’s offending reflects adversely on his capacity to engage in employment, or carry on a business, that involves or may involve children.[18]
- FZ received a range of penalties for his offending as set out in his criminal history. In instances where a Court did not impose sentence of imprisonment on him, its reasons for doing so are unknown.[19]
- [44]Concerning matters the Tribunal must have regard to under s 228 of the WWC Act.
- FZ was named as a respondent in domestic violence protection orders made by the Goondiwindi Magistrates Court on:[20]
- (i)9 January 2006 (protection order);
- (ii)4 June 2007 (variation);
- (iii)1 December 2008 (temporary protection order);
- (iv)5 January 2009 (final order).
- (i)
- FZ was also named as Respondent in a protection order made by the Inglewood Magistrates Court on 22 June 2000 and the Warwick Magistrates Court on 7 July 2000.
- The above domestic violence orders relate to two of FZ’s former partners. I have considered all the circumstances relating to the orders including the conditions imposed on FZ by the orders.[21]
- It has been 13 years since the last order naming FZ as a respondent was made.[22] Nevertheless, in Commissioner for Children and Young People and Child Guardian v Ram,[23] the Appeal Tribunal observed that changes that amount to living life in a law-abiding manner as society expects, and functioning in the community at a level expected of a person at their stage and age in life, are in the ordinary course and are not exceptional.
- FZ’s extensive history of domestic violence plainly reflects adversely on his capacity to engage in employment, or carry on a business, that involves or may involve children.
- FZ was named as a respondent in domestic violence protection orders made by the Goondiwindi Magistrates Court on:[20]
- [45]The scourge of domestic violence can only be resisted by ensuring that the anachronistic and entrenched attitudes of mature domestic violence offenders are not passed down to younger generations. In my opinion, giving FZ a clearance carries with it the risk that the impressionable minds of young people who fall within his sphere of influence could be infected with his poor attitudes towards domestic violence and the treatment of women. I consider granting a clearance to FZ, who has limited insight and remorse, and who refuses to be held accountable for his conduct, is antithetical to the paramount principles of administering the WWC Act, namely:
- the welfare and best interests of a child are paramount; and
- every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
- [46]For the reasons above, I am not satisfied, on the balance of probabilities, that FZ’s case is exceptional. Accordingly, the Tribunal must confirm DJAG’s decision.
Application of the Human Rights Act 2019 (Qld)
- [47]The Tribunal must apply the Human Rights Act 2019 (Qld) (‘HR Act’) when reviewing the decisions of a ‘public entity’.[24] DJAG is a public entity. Section 58 of the HR Act provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights[25] or in making a decision, to fail to give proper consideration to a human right relevant to the decision.[26] A decision is compatible with human rights if it does not limit a human right, or limits a human right only to the extent that is reasonably justifiable in accordance with s 13 of the HR Act.
- [48]FZ desires a clearance for the purpose of coaching children at the Inglewood football club, and to volunteer at community events where children may be present. My decision will limit the FZ’s right to associate freely with others, namely with children at sporting clubs and community events, conferred by s 22(2) of the HR Act, Nevertheless, I have considered relevant factors set out a s 13 of the HR Act and I am satisfied that limiting FZ’s right to associate freely is reasonable and justifiable.
- [49]The WWC Act places paramountcy on promoting and protecting the interests of children and young people. It follows that achieving that purpose necessarily limits the rights of individuals to associate freely if doing so compromises the safety of children. On balance, I consider the importance of protecting children outweighs the limitation of FZ’s right to associate freely in this instance.
Non publication order
- [50]I propose to make a non-publication order to comply with s 159(1)(b)(i) of the Domestic and Family Violence Protection Act 2012 (Qld), which prohibits publication of information which identifies, or is likely to lead to identification of a person, who is a party to a proceeding under that Act.
- [51]Having concluded that there is no exceptional case for FZ, I make the following orders:
- The decision of the Director-General, Department of Justice and Attorney-General, that FZ’s case is not ‘exceptional’ within the meaning of s 225 of the Working with Children (Risk Management and Screening) Act 2000 (Qld), is confirmed.
- Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
- the contents of a document or thing filed in or produced to the Tribunal;
- evidence given before the Tribunal; and
- information that may enable FZ, A, B, or C to be identified.
is prohibited.
Footnotes
[1] WWC Act, schedule 2.
[2] Ibid, s 225.
[3] Ibid, s 225(1)(b), (2).
[4] Ibid, s 20(1).
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[6] WWC Act, s 360.
[7]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 [3].
[8]Commission for Children and Young People and Child Guardian v FGC [2001] QCATA 291, [31], citing Kent v Wilson [2000] VSC 98, [22].
[9]Cabal v United Mexican States (2001) 180 ALR 593 [33].
[10]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [34].
[11]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303.
[12]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [14] (citing Cabal v United Mexican States (2001) 180 ALR 593 [33].
[13]DEF v Director-General, Department of Justice and Attorney-General [2022] QCAT 127 (Cranwell M citing Re FAA [2006] QCST 15, [22].
[14]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.
[15] [2004] QCA 492.
[16] WWC Act, s 226(2)(a)(i).
[17] Ibid, s 226(2)(a)(ii).
[18] Ibid, s 226(2)(a)(iv).
[19] Ibid, s 226(2)(a)(v).
[20] Ibid, s 228(1)(b)(i).
[21] Ibid, s 228(2)(a).
[22] Ibid, s 228(2)(e).
[23] [2014] QCATA 27, [47].
[24]PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188; Kracke v Mental Health Review Board v Ors (General) VCAT 646, [291]; PJB v Melbourne Health [2011] VSC 327.
[25] HR Act, s 58(1)(a).
[26] Ibid, s 58(1)(b).