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PAX v Director-General, Department of Justice and Attorney-General[2024] QCAT 344

PAX v Director-General, Department of Justice and Attorney-General[2024] QCAT 344

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

PAX v Director-General, Department of Justice and Attorney-General [2024] QCAT 344

PARTIES:

PAX

(applicant)

v

Director-General, Department of Justice and attorney-General

(respondent)

APPLICATION NO/S:

CML065-23

MATTER TYPE:

Childrens matters

DELIVERED ON:

13 August 2024

HEARING DATE:

10 April 2024

HEARD AT:

Brisbane

DECISION OF:

Member Hemingway

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General, that the Applicant’s case is “exceptional” within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.

CATCHWORDS:

Where applicant had significant charges downgraded – where applicant’s offending confined to one occasion – where applicant’s behaviour is both criminal and anti-social – whether applicant displays insight – where applicant has sought professional counselling and psychological assistance – where children not present – where Applicant aggrieved by domestic violence – whether applicant’s case is an exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226

Human Rights Act 2019 (Qld), s 8, s 13, s 26 s 58, s 31

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6

Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171

Briginshaw v Briginshaw (1938) 60 CLR 336

WJ v Chief Executive Public Sector Business Agency (2015) QCATA 190

Re TAA [2006] QCST 11

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219

Commissioner for Children and Young people and Child Guardian v Eales [2013] QCATA 303

Ken  v Wilson [2000] VSC 98

PGI v Public Safety Business Agency [2015] QCAT 91

PWJ v Public Safety Business Agency [2016] QCAT 179

Director-General, Department of Justice and Attorney-General v Gavin John Dickson [2024] QCATA 38

TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms C Davis, Advocacy Officer Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

Background

  1. [1]
    This is an application for review of a decision by the Director-General (the chief executive officer), Department of Justice and Attorney-General (‘the Respondent’) that the case of PAX (‘the Applicant’) is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    The Applicant held a blue card (working with children clearance) on 22 March 2021. The Applicant was employed as a child-care worker and seeks a blue card to continue her work.
  3. [3]
    Blue Card Services (‘the Respondent’) were notified on 5 July 2021 by the Queensland Police Service that the Applicant’s police information had changed. This caused the Respondent to reassess the Applicant’s eligibility to hold a blue card.
  4. [4]
    The Respondent invited the Applicant to make submissions as to whether or not an exceptional case existed such that a negative notice should be issued to her.   
  5. [5]
    On the 24 January 2023, the Respondent wrote to the Applicant refusing a working with children clearance to the Applicant and giving reasons for this negative notice.
  6. [6]
    The Applicant applied to the Queensland Civil and Administrative Tribunal to review that decision on the 21 February 2023.
  7. [7]
    The Applicant has availed herself of extensions of time in which to lodge responses as follows. The Applicant applied to the Tribunal to extend time for compliance with directions requiring compliance by 3 August 2023. The Tribunal extended time on these dates: 1 March 2024, 15 March 2024 and 29 March 2024 in respect of Tribunal Directions numbered 5, 7, 8 and 9 of Directions made 3 August 2023. A prior extension was sought and granted on 13 December 2023 for compliance with direction 5 of Directions dated 3 August 2023, until 31 January 2024.[1]
  8. [8]
    The matter was heard on 10 April 2024. The Applicant and Respondent provided post-hearing written final submissions on 1 May 2024 and 15 May 2024.
  9. [9]
    The Tribunal notes the Queensland Civil and Administrative Tribunal Order dated 6 September 2023 which required the Commissioner of Police, Queensland Police Service to produce various documents or things including any other evidence, including CCTV, photographic and or video footage, such as body worn camera footage, collected during the related to the investigations. This was responded to on 24 November 2023, including body-worn camera footage depicting the Applicant’s arrest on 3 July 2021 and the footage depicting time surrounding the Applicant’s arrest on 3 July 2021.
  10. [10]
    The Applicant is a single mother of two children with special needs. She has previously worked for a considerable time in childcare. She states that she has been subjected to domestic and family violence by a previous partner. She is undergoing on-going trauma counselling in respect of this. The Applicant’s communication is affected by an undiagnosed auditory or visual processing disorder, emotional dysregulation and trauma as well as Post-Traumatic Stress Disorder.[2]

Legislative Framework

  1. [11]
    The Tribunal reviews the decision of the Respondent in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).[3] The Tribunal must hear and decide a review by way of a fresh hearing on the merits and has all the functions of the decision maker for the reviewable decision.[4]
  2. [12]
    The purpose of the review by this Tribunal is to consider whether the Applicant’s history and current circumstances constitute an exceptional case and to produce the correct and preferable decision with respect to the issue of a negative notice.
  3. [13]
    In undertaking the Review, the Tribunal considers the object of the WWC Act which is to promote and protect the rights, interests, and well-being of children in Queensland through the administration of a scheme to screen persons seeking employment in particular areas concerning children or who operate relevant child related businesses.[5]
  4. [14]
    The chief consideration in this review is that the welfare and best interests of children is the paramount consideration.[6] The Tribunal must also consider the factors required for consideration under the WWC Act and any other relevant factors.
  5. [15]
    Section 221(2) of the WWC Act provides for the issue of a positive notice (working with children clearance), except where the chief executive finds an exceptional case applies. The decision under review is whether an exceptional case exists such that the presumption under section 221(2) is rebutted.
  6. [16]
    The legislation does not define ‘exceptional case’. It is a matter which should be determined on an individual case basis, not hampered by a general rule.[7] The Tribunal must find an exceptional case exists if, based upon all considerations, it would harm the best interests of children to issue a positive notice allowing the holder an unfettered right to work with children in any capacity.
  7. [17]
    In Kent v Wilson [2000] VSC 98, Hedigan J commented that exceptional is defined contextually in the Oxford English Dictionary (2nd Edition Volume V), as meaning unusual, special, out of the ordinary course. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what the relevant factors are.[8]
  8. [18]
    In the decision of the Appeal tribunal in Commissioner for Children and Young People and Child Guardian v FGC[9] the term exceptional was referred to as follows:

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.[10]

  1. [19]
    The Tribunal has previously considered that the standard of proof required for the Tribunal in the review of a reviewable decision is on the balance of probabilities, the civil standard of proof, bearing in mind the ‘gravity of the consequences.’[11] Neither party bears the onus of proof. The Tribunal notes that the rules of evidence do not apply, and the Tribunal must afford the parties natural justice.[12]
  2. [20]
    Scott’s case is generally regarded as authority for the proposition that any hardship or prejudice suffered by the Applicant in determining the question before the Tribunal is not relevant to the finding of an exceptional case which must prioritise the interests and wellbeing of children over the interests of the Applicant.[13]
  3. [21]
    In reaching a decision, the Tribunal must apply the mandatory considerations under section 226 of the WWC Act in addition to the paramount principle under sections 360 and 6(a) of the WWC Act and any other relevant factors.
  4. [22]
    Section 226(2) of the WWC Act lists the following specific factors which must be considered by this Tribunal:
  1. in relation to the commission, or alleged commission, of an offence by the person—
  1. whether it is a conviction or a charge; and
  1. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. when the offence was committed or is alleged to have been committed; and
  1. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
  1. any information about the person given to the chief executive under section 318 or 319;
  1. any report about the person’s mental health given to the chief executive under section 335;
  1. any information about the person given to the chief executive under section 337 or 338;
  1. information about the person given to the chief executive under the Disability Services Act 2006, section 138ZG;
  1. anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [23]
    There is no information available to the Tribunal in respect of sections 318, 319, 335, 337, or 338 of the WWC Act or section 138ZG of the Disability Services Act 2006 (Qld).

Police records and court outcomes concerning the Applicant

  1. [24]
    The Applicant has a criminal history. The offences are not serious or disqualifying offences.
  2. [25]
    Serious offence is defined in section 15 of the WWC Act. It includes an offence against a provision of an Act mentioned in schedule 2 or 3, column 1, subject to any qualifications relating to the provision mentioned opposite in column 3.
  3. [26]
    Disqualifying offence is defined in section 16 of the Act. It includes an offence against a provision of an Act mentioned in schedule 4 or 5, column 1, subject to any qualifications relating to the provision mentioned opposite in column 3.
  4. [27]
    The Applicant has three charges in her criminal history as follows:
    1. Serious assault of a police officer
    2. Obstructing a police officer
    3. Failure to leave licensed premises 
  5. [28]
    The circumstances of her offending are outlined in the police brief.[14] the Tribunal notes that apart from the charges laid as a result of the Applicant’s conduct on 3 July 2021, there are no other charges or convictions in her record. The Police Brief outlines the circumstances of the offending which is confined to events on 3 July 2021 and is summarised as follows.
  6. [29]
    The Applicant and a male companion attended a licenced venue on 3 July 2021 at 8.30pm. They were observed to be intoxicated. The event occurred when Covid restrictions applied to the licensed venue. Both failed to complete the required Covid-19 barcode check-in. Security at the venue spoke to the Applicant and her companion about this but they asserted that they were not required to complete the process.
  7. [30]
    The Applicant was observed by staff at the venue to be telling other patrons in the bar to take their masks off and were creating a disturbance by dancing in between the bar and where they were seated. Security approached them and told them to wear a mask and to be seated in accordance with Covid-19 restrictions in place. They failed to comply.
  8. [31]
    The male companion stood on top of a bar stool and commenced dancing. The staff asked them to leave after they finished their purchased drinks. They refused to leave and told staff to call police.
  9. [32]
    The Applicant began recording staff on her mobile phone. She was requested to cease this. The Applicant attempted to enter the staff area office where the Manager was contacting police. The Applicant and her male companion refused to leave the premises though asked repeatedly by security. The Applicant and her male companion went outside and were met by police. The male companion was arrested and placed in handcuffs.
  10. [33]
    During the arrest, the Applicant was verbally abusive to police and attempted to prevent the arrest. Police were on the ground with the male and the Applicant continued to try to stop the arrest. She fell to the ground. She stood up and then continued verbal abuse standing a short distance away. She then approached the police and kicked the police officer complainant to the left shoulder causing him immediate pain. This was observed by other police officers, multiple security officers and patrons. The brief states that the Applicant was the main aggressor. The Applicant was arrested and taken to Cleveland Police Station. The police obtained three videos of the Applicant and her partner taken inside another licenced premises earlier that day between 5.46 and 5.50 pm on 3 July 2021. The video shows the Applicant approaching the bar to order alcoholic beverages.
  11. [34]
    Bar staff refused to serve the Applicant and the male as they were non-compliant with Covid-19 restrictions in not wearing masks or signing in. Other patrons were observed to speak to the Applicant concerning their refusal to wear masks. The manager requested to see the medical exemption and the Applicant stated that it was illegal to ask her for the exemption, stating not even a police officer has the right to ask that.
  12. [35]
    The Applicant eventually produced a certificate from a Doctors’ Surgery and stated I would like a drink now please.
  13. [36]
    Police spoke to the Tavern (other venue) which stated that the Applicant and her partner were making a nuisance of themselves at the other bar earlier in the evening. The Applicant and her male companion were observed to be encouraging a fight between patrons and telling them not to wear masks. The Applicant continued to argue and challenge staff in relation to the Covid protocols.
  14. [37]
    The charges in respect of these events were finalised on 18 March 2024. His Honour found that on the charge of Serious Assault/Resist/Obstruct Police Officer/Person Acting in aid of a Police Officer that no evidence was offered. In respect of the charge of Obstruct Police Officer no evidence was offered. In respect of the charge of Public Nuisance within or within the vicinity of licensed premises the Applicant pleaded guilty and was fined $300 and placed on good behaviour bond for 6 months with no conviction recorded.
  15. [38]
    Upon Inquiry of the Officer In Charge of the Cleveland Police Prosecutions Corp as to why the record was NETO’d (No evidence to offer), it was stated that there were no notes in relation to why the charges were NETO’d, however it may have been as a result of a case conference with Former SGT JH. The Assistant Information Officer of the Right to Information and Subpoena Unit of Queensland Polic Service stated that the office has no further information to provide regarding this request.[15]

Respondent’s case

  1. [39]
    The documents relied upon by the Respondent are as follows:
    1. Reasons for Issue of negative Notice BCS 001-009
    2. Application BCS-010
    3. Relevant information documents BCS 001-018
    4. Letter requesting submissions BCS 019-030
    5. Transcript proceedings 22 March 2022 BCS 042-043
    6. Negative Notice BCS 034-040
    7. Department Child Safety material NTP 001-008
    8. Department of Transport NTP 009-009
    9. Video by Queensland Police service titled ‘AXON body_2 2021097-03-2032’ USB
    10. Video by Queensland Police service titled ‘AXON body_2 2021097-03-2048’ USB
    11. Video by Queensland Police service titled ‘ch05_20210703201700’ USB
    12. Verdict and Judgment dated 22 March 2022 BCS-044
    13. Reasons No evidence to Offer BCS-045.
  2. [40]
    The Respondent states that this offending reflects that at the relevant time the Applicant was intoxicated, and her behaviour was anti-social and showed a disregard for the rights, interests and wellbeing of others.
  3. [41]
    The Respondent holds concerns about the Applicant’s skills abilities and qualities necessary to work safely with children and young people. 
  4. [42]
    The Respondent submits their concerns are maintained as a result of the Applicant’s evidence at the hearing.
  5. [43]
    The Respondent states that Applicant’s evidence was to the effect that she thought her medical exemption from the Covid-19 requirement to wear a mask had nothing to do with other patrons who made comments to her and her partner. She agreed that she did not complete the Covid-19 check-in and did not do this because she was also exempted from the need to check-in because of the mask exemption. She was unclear as to why she thought this. The Applicant’s evidence was that she did not think about it this much. The Respondent states that the requirement to check-in was a lawful request applicable at the time.
  6. [44]
    The Respondent states that the Applicant’s claims she is caring and displays empathy towards others are not supported by her evidence in the hearing which showed she cared little or had little empathy for others on 3 July 2021. This included the
    1. Police;
    2. The management/owner of the Elysium bar and restaurant;
    3. The bar staff and security staff at the Elysium bar and restaurant;
    4. Other patrons;
    5. The wider community.
  1. [45]
    The Respondent concludes that it holds little confidence
    1. that the Applicant does not hold anti-social beliefs or attitudes;
    2. as appropriate regard for the rights interest and wellbeing of others; 
    3. that the Applicant possesses the skills, abilities and qualities submitted to be necessary to work safely and well with children and young people;
    4. Another major concern for the respondent is the extent to which the Applicant’s character witnesses knew the extent of the behaviour of the Applicant on 3 July 2021 and the impact of this upon the weight to be given to their evidence. The weight given to the evidence of F[16], Y[17] Z[18] and the Applicant’s sister P[19] should be reduced because their evidence was unable to tested adequately in the Respondent’s view.
  1. [46]
    The Respondent also states that many character witnesses stated that the Applicant’s conduct on 3 July 2023 was out of character but had little actual or incomplete knowledge of the behaviour of the Applicant. Only one witness, M, had seen the body-worn camera footage of the incident. Numerous witnesses thought the behaviour of the Applicant was justified in that they thought that the Applicant’s partner was being mistreated by police. Many of the Applicant’s witnesses thought that the Applicant was not intoxicated including E, who said the Applicant’s drinking habits were never bad to begin with and were not much and are now more strict. Some witnesses minimised the issue of non-compliance with Covid-19 restrictions stating that they were unrelated to health, safety and wellbeing of the community. Many witnesses held anti-social attitudes and values themselves.
  2. [47]
    The Respondent was particularly concerned about the evidence of the Applicant’s mother who stated that the Applicant had done nothing wrong and that she shared the Applicant’s view that a mask-wearing exemption exempted the person from compliance with check-in requirements.
  3. [48]
    S’s evidence stated her belief that police had violated the Applicant’s partner on 3 July 2021 based upon the Applicant telling her this and that she did not consider that applicant swearing at police to be relevant as it was just words. She stated that she would have done the same thing as it was an extremely stressful situation and that she considered it ridiculous that just one incident could affect a person’s career. She did not agree with the Covid-19 check-in restrictions because they attempt to control people and do not stop people getting the virus. 
  4. [49]
    V’s evidence was to the effect that the Applicant did the right thing and felt that the Applicant was justified in intervening, stating that anyone would do the wrong thing. She said that it was unnecessary for the Applicant to complete the Covid-19 check-in if one had privacy concerns and because everyone is entitled to do what they want to do. Though unsure as to whether the Applicant was telling people not to wear masks, she believed that if someone wants to express their views, they should be able to do so.
  5. [50]
    The Respondent states that the Tribunal should reduce the weight given to the evidence of the witnesses as the witnesses were not fully informed and expressed anti-social and inappropriate or concerning views and attitudes in their written references and during the oral evidence.
  6. [51]
    The Respondent also highlights concerns in the evidence of the counsellor, Mrs A, who stated when questioned that she had seen the body-worn camera footage from 3 July 2021 and that she did not believe the Applicant was intoxicated and that she attributed most of the Applicant’s behaviour to the Applicant’s mental health. She stated that she believes the Applicant’s nervous system would respond differently today. She was not certain if the Applicant had been charged with a criminal offence, had pleaded guilty to a criminal offence, or had been alleged to fail to complete a Covid-19 check-in on 3 July 2021.
  7. [52]
    Mrs A opined in her letter in 2021 that:

Under significant stress, the Applicant becomes overwhelmed with tasks that she would ordinarily complete with more ease. If she does not have the right amount of support or nervous regulation in place, the Applicant struggles to navigate any undertaking that is cognitively or emotionally taxing.[20]

  1. [53]
    Mrs A stated that she should have worded this differently though she did not retract the statement. She was of the view that the Applicant should be tested as to whether she has an auditory…or visual processing disorder; and she observed that at times she noted the Applicant sometimes struggled with interpreting language and processing it cognitively.
  2. [54]
    The Respondent acknowledges the supportive views of the counsellor but remains concerned the evidence of Mrs A supports the view that that the Applicant struggles with interpreting language and processing it cognitively. Mrs A’s evidence is that the Applicant becomes overwhelmed with certain tasks of significant stress and would struggle without the right amount of support or nervous system regulation and that this is an issue in the review as the Applicant may be caring for children without the support Mrs A considers is required.
  3. [55]
    The Respondent is of the view that the evidence of Mrs A is reduced by the risk that her opinion is not made with all the facts and that as a result her opinion is not sufficient to assuage concerns about risks associated with the Applicant.
  4. [56]
    Remaining concerns of the Respondent are that the Applicant considers her actions of 3 July 2021 not to be disproportionate and to be somewhat justified. Further the Applicant did not attribute her reaction to the events of 3 July 2021 to her mental health and so her evidence does not align with the evidence of the counsellor.
  5. [57]
    The Respondent concludes their position that the Applicant demonstrates little insight into her behaviour and that in the circumstances the Tribunal ought to find an exceptional case.
  1. [58]
    The Respondent

submits that the Applicant may engage in threatening and unlawful behaviour in response to conflict, which raises concerns about her ability to exercise restraint and deal with situation in a rational and law-abiding manner. Such skills are important when working with children, as children rely on the adults around them to provide a safe and protective environment and act in their best interests.

Applicant’s case and documents relied upon by the Applicant

  1. Index Bundle of documents marked 1-6;
  2. A statement of evidence dated 29 February and annexures A-F.
  1. [59]
    The Applicant submits that:
    1. her witnesses support her position that she does not pose a risk to children;
    2. she maintains the events of 3 July 2021 were an isolated event;
    3. she has been the victim of domestic violence;
    4. she is of good character;
    5. she maintains her excellent track record in caring for children, including her own special needs children;
    6. that she is not required to be a good role model but just that her case is not exceptional.
  2. [60]
    The Applicant says that her referees state that she is kind, caring and supportive, and that the events of 3 July 2021 do not reflect her ability to provide appropriate care as a childcare worker of twenty years standing.
  3. [61]
    The Applicant states that she is a victim of domestic violence and is undergoing counselling for trauma related to this experience.
  4. [62]
    The Applicant submits she is no longer a risk with respect to her breaches of traffic rules, having no further infringements since December 2021. She has reflected upon this issue and now uses GPS monitoring of speed to adhere to speed limits.
  5. [63]
    The Applicant submits that crucial evidence was not disclosed in legal proceedings by the police and that this is the reason charges against her were dropped. She maintained at the hearing that further body-worn camera footage has not been provided for the hearing but that it shows her partner being assaulted by police and that this evidence of assault justified her behaviour towards police. The Applicant also submits that she and her solicitor have reviewed that evidence which she contends shows force being used by police officers against her former partner. She concluded that her actions were a spontaneous act of protection which she regrets. She states that her reaction to the situation was impulsive and unlike anything she had experienced before and not characteristic of her normal behaviour.
  6. [64]
    The Applicant states that in her oral evidence she may have appeared to minimise or justify her actions, but that she was unrepresented in the proceedings and was not intending to minimise her conduct. She submits that she has insight and is remorseful for her actions.
  7. [65]
    The Applicant states that the Covid-19 restrictions were lifted around the time of the events of 3 July 2021. She said she had been isolated at home with two young children prior to this and so when she went out it was a challenging environment. She asks the Tribunal to consider these unusual circumstances, given her personal circumstances with two dependent special needs children and an abusive partner.
  8. [66]
    The Applicant states that her act of public nuisance was fuelled by a fight or flight response in an unusual, chaotic and distressing situation.
  9. [67]
    The Applicant refers to her contention that the police’s actions instilled fear in her contributing to her reaction. She states that the intimidating nature of the situation exacerbated her distress and that it was an unfamiliar situation which she deeply regrets. She states that her reaction was contributed by the fear also of her then partner who was abusive. She states that she feared retribution from him if she left the scene. She also attributes the response to her mental health, which was affected by her abusive relationship, her vulnerability and distress.
  10. [68]
    The Applicant stresses that the event of 3 July 2021 was an isolated event exacerbated by her small size, the physical size of police, and the distress experienced by her because the incident involved her abusive former partner. In her oral submissions to Blue Card services (paraphrased in these Reasons) the Applicant indicated the following matters which the Tribunal regards as protective or qualified protective factors:
  11. [69]
    The Applicant states that the protective factors in her case are that she has:
    1. been more vigilant with her driving practices;
    2. continues with her counsellor to rebuild her life;
    3. has established personal security for herself and her children by leaving an abusive relationship;
    4. does not abuse alcohol or go out socially anymore;
    5. has engaged in practices such as meditation to further her emotional regulation;
    6. does have significant regret and remorse taking full responsibility and now understands that different choices could have been made by her;
    7. urges the Tribunal to consider the provisions of the Human Rights Act 2019 (Qld) (‘HRA’) and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) with respect to the right to work.
  12. [70]
    She states that she does not present a risk to children, having her own children in her care who have special needs and so require significant attention and monitoring, as well as engagement with relevant therapeutic services. Her children have a support worker, funded through the National Disability Insurance Scheme, but the Applicant attends to all medical needs and the accessing of multiple relevant support services.
  1. [71]
    She has significant childcare experience since 2001. She states that she radiates patience, innovation and unwavering passion to care for children. She refers to the witness statements of Y, F, S and her counsellor.

Consideration of the Evidence

  1. [72]
    Section 6 of the WWC Act states that:

The welfare and best interests of children are paramount.

that children have a right to be cared for in a way that protects the child from harm and promotes the child’s well-being.

  1. [73]
    The Respondent is concerned about the weight which can be given to evidence of the witnesses where the witnesses are unsure of the full details of the offending and display anti-social attitudes. The Tribunal accepts that both the Applicant and the witnesses hold extreme and anti-social views. For example, the witness S stated that the Applicant’s conduct in repeatedly swearing at Police using the ‘f word’ was not relevant, as it was just words. The Tribunal considers it unlikely the witnesses approach the discipline of children in their care in the manner described by the witness V who says that everyone is entitled to do what they want to do.
  2. [74]
    Holding anti-social views is not illegal. What is relevant is what one does with those views. The Tribunal finds that much of the evidence of the witnesses falls into the category of misinformation upon which they have ruminated and then engaged in hyperbole to aid their friend and relative, the Applicant. The witnesses are unanimous that the actions of the Applicant on 3 July 2021 are out of character and the Tribunal agrees with this aspect of their evidence giving it considerable weight. However, despite their shortcomings, support from family and friends demonstrates the capacity of the Applicant to maintain relationships. For children the maintenance of friendships demonstrates a healthy interaction with others; this is essential to being a good role model for children, incidentally. The Applicant is clearly not a loner.
  3. [75]
    The proceedings have given the Applicant the opportunity to reflect on the quite dire consequences of her actions towards police on 3 July 2021. Her actions then are inexcusable, but this does not mean she cannot review the conduct and change direction. The Tribunal is of the view that she has done this and has indicated through her witnesses and her own testimony that she now does not abuse alcohol and socialises in a limited way without the presence of a destructive partner.
  4. [76]
    Finally, the Respondent cites the evidence of Mrs A previously referred to above. The Respondent cites the view of Mrs A that the Applicant has a mental health condition such that the Applicant can become dysregulated when overwhelmed. In other respects the evidence of Mrs A is cogent as it illustrates the capacity of the Applicant to address her behaviours of concern. The Tribunal places little weight upon the Respondent’s contention regarding Mrs A’s inconsistency. The Tribunal has weighed the totality of her evidence regarding the psychological support she has given to the Applicant as strongly in favour of the Applicant’s development of on-going insight.
  5. [77]
    The Applicant submits that she is not required to be a good role model but that the review Tribunal must establish whether her case is exceptional.[21] This is correct in that the WWC Act does not require a person to be a good role model.
  6. [78]
    The Applicant cites the decision in CW v Chief Executive, Public Safety Business Agency[22] (‘CW’) as evidence that to expect that the Applicant be a good role model would impose a higher standard for members of the community who have committed an offence than for those without conviction who are given a blue card on application.
  7. [79]
    The Tribunal does not accept this reasoning, as though the term is imprecise and subjective, the general community expectation is that persons having the care of children should observe some basic standards. The term role model encompasses, in the Tribunal’s view, a general community standard that a blue card holder should act lawfully, have self-respect and encourage children to act respectfully towards authority and to consider others. Multiple cases since the decision in CW make the observation that a blue card holder should be a good role model. Most Applicants in these proceedings raise the issue themselves, submitting that the Tribunal take into account their efforts being made to be good role models for young people and children who observe them and may be aware of any offending.[23]
  8. [80]
    The term role model is used across many different scenarios which come before the courts and the Tribunal finds that though it is not a requirement under the legislation it is a commonly known term which includes an inference that a good role model will implicitly not be a risk to children.[24]
  9. [81]
    Irrespective of this issue and the decision in CW, the Tribunal is entitled to take into account the conduct of the Applicant which amounts to relevant information in terms of section 221(3)(iii) of the WWC Act.
  10. [82]
    The Applicant raises the issue that two of her charges were dismissed. She therefore accords limited weight to the fact of her having been charged, as it did not result in a penalty being imposed.
  11. [83]
    It has been observed relevantly in TNC v Chief Executive Officer, Public Safety Business Agency[25] that

a charge is not the same as an allegation. Before a charge is brought consideration is given to the evidence available supporting the charge. This gives it more weight than an unscrutinised allegation. The legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.

  1. [84]
    Further, the fact that the Applicant contends that Police action caused her to respond in the manner in which she did is a factor given limited weight by the Tribunal. The Applicant has now conceded that she could have handled the situation differently and that she had choices which did not involve a violent response.
  2. [85]
    The Tribunal accepts the evidence concurred with by the Applicant herself, that the Subpoena to the Queensland Police Service has been complied with such that there is no additional available evidence to support her claim that police assaulted her partner. In any event, as was explained to her in the hearing, the alleged conduct of the police does not excuse her response to the police. 
  3. [86]
    The Tribunal has considered the submission of the Applicant that the penalty imposed by the Court and the fact that the incident on 3 July 3021 was an isolated instance as weighing heavily in her favour that her case is not exceptional. The decision in Director-General, Department of Justice and Attorney-General v CMH[26] (‘CMH’) is relevant in this regard. In that case the Appeal Tribunal found that an objective of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children in Queensland. Every child is entitled to be cared for in a way that protects them from harm and the welfare and best interests of children is paramount

Although the focus in blue card matters is on the protection of children from future harm within places of employment, the intention of the legislation is not to place additional punishment upon an applicant, thereby punishing them twice if they have acquired a police or disciplinary record.[27]

  1. [87]
    It is not the role of this Tribunal to try the criminal matters again as they have been determined by the Court. The outcome of the proceedings indicates that in terms of section 226(2)(v) of the WWC Act the Court has dealt with the final offence at the lower end of the penalty scale. It is not for the Tribunal to establish the Applicant’s guilt or innocence for the offences already determined. In Chief Executive Officer, Department for Child Protection v Grindrod (No 2)[28] (‘Grindrod’), the Court arrived at a position that it was not the Respondent’s function or the tribunal's function to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the charges or has exculpatory evidence relevant to such a determination.[29]
  2. [88]
    There is no further investigative material or offending relating to the Applicant and this factor weighs in favour of the Applicant.
  3. [89]
    In Grindrod, the member described the role of the Tribunal on this point as follows:

The relevant function involves an analysis and evaluation of risk. [The arrival at the correct and preferable decision should not be] concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm [being at the forefront of the ultimate decision].[30]

  1. [90]
    The Tribunal is charged with determining if this is an exceptional case in which it would harm the best interests of children if a positive notice were to be issued. The Tribunal is concerned with a determination to establish the risk of harm to children from the Applicant. Harm is defined broadly in the Child Protection Act 1999 (Qld).[31]
  2. [91]
    As the WWC Act contemplates, ‘it is immaterial how the harm is caused’. Harm to a child is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. It is immaterial how the harm is caused. Harm can be caused by—
    1. physical, psychological or emotional abuse or neglect; or
    2. sexual abuse or exploitation; or
    3. a single act, omission or circumstances; or
    4. a series or combination of acts, omissions or circumstances.
  3. [92]
    There is no evidence that children were present on 3 July 2021 or witnessed the interaction between the Applicant and police. The Respondent is concerned about the risk of harm to children in her care if the Applicant becomes dysregulated and is unable to use restraint when confronted by highly stressful events. The Tribunal is mindful of the fact that the blue card is transferable.
  4. [93]
    The Tribunal considers the actions of the Applicant on 3 July 2021 to be most concerning for the reasons outlined by the Respondent. The actions of the Applicant were extremely antisocial, flouted laws in place and interfered with the administration of justice by the first responders, police. Police are placed in life-threatening circumstances on a daily basis by their obligation to enforce the law and satisfy their obligations to the community. Her actions were criminal, as well as anti-social. When asked in the hearing what the community duty to first responders should be, the Applicant agreed that they deserved respect.
  5. [94]
    The actions of the Applicant, albeit extremely intoxicated, were egotistical and misjudged, showing a lack of empathy for the venue staff, the patrons and law enforcement. In this respect the Tribunal agrees with the submissions of the Respondent. Fortunately, there is no evidence that children were present or witnessed the events.
  6. [95]
    The Applicant’s insistence on ignoring the Covid-19 restrictions, inciting others to ignore the restrictions and requesting special consideration shows an anti-social approach which would not be helpful were children encouraged to adopt it.
  7. [96]
    The Applicant’s referees assert that the Applicant was not a regular drinker, so it is arguable that she failed to understand the effect upon her of the amount of alcohol she consumed. She agreed that she was quite intoxicated. If she was not a regular drinker, she might have observed the signs of significant intoxication starting to affect judgment and behaviour.
  8. [97]
    The Tribunal takes into account the following factors, not because they amount to hardship upon the Applicant but that they represent the circumstances relevant to the Tribunal’s evaluation of what future risk she presents, if any.
    1. Absence of any other criminal offending, or disciplinary or investigative information;
    2. being the sole carer and having the care of two special needs children in an environment of domestic and family violence;
    3. any mental health status;
    4. her hearing impairment impacting communication;
    5. her small physical size as opposed to the police;
    6. the exigencies of care for two special needs children; and
    7. her feeling overwhelmed by the circumstances of being able to leave home on the first occasion in the climate of the Covid protocols.
  1. [98]
    The Tribunal notes the decision in Re TAA[32] which describes the value of insight as follows:

The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children.

  1. [99]
    The Applicant is seeking support from her counsellor and developing strategies for self-regulation. Her personal circumstances are complex. She has a physical impairment with her hearing and uses hearing aids; her counsellor states that she has PTSD from traumatic events in her life. She has the sole care of young children with special needs. Her life has been affected by a history of domestic violence towards her. The Applicant’s personal circumstances have changed since the events of 3 July 2021 and that is a credit to her developing insight together with her assistance from her counsellor.
  2. [100]
    The Tribunal finds that the Applicant has made positive progress, and that she has demonstrated regret for her actions, and she has sought professional assistance to put in place some necessary changes in her life. This is a display of PAX’s ability to improve herself. She has acted upon her reflection of the events and the Tribunal is satisfied she would not repeat this conduct for this reason.
  1. [101]
    The Tribunal therefore finds that the Applicant has developed insight into the events of 3 July 2021 and that protective factors are in place. Whilst the Tribunal is not required to balance risk factors with protective factors in order to determine if an exceptional case exists, the Tribunal has considered the protective factors to which the Applicant refers.[33]
  1. [102]
    The Tribunal particularly notes the observations in that case that children are dependent on the adults around them to model law-abiding behaviour. The Applicant conceded in the hearing that societal expectations are that people caring for children must be able to regulate their conduct to promote the security of children in their care.
  2. [103]
    The Tribunal accepts that the Applicant now appreciates the risk involved in her previous pattern of conduct and how this could be harmful to children were they to be exposed to the events on 3 July 2021.
  1. [104]
    The Tribunal has been given evidence that she has been the subject of domestic violence and it is noted that she is a small female with two dependent children. At the time of the offence a factor raised was her fear of retribution from her then male partner. The Tribunal has considered these factors when considering whether this is an exceptional case. The impact of domestic violence on individuals could lead in the Tribunal’s view to a person acting out of character from their usual behaviour. The Tribunal has weighed this factor in this review.
  2. [105]
    The Tribunal notes the recent amendments to the WWC Act which take account of the impact of domestic violence on individuals, families and the community. In fact the reason for the amendments can be found in the prevalence of domestic and family violence and its deleterious effects, which can be lifelong. The community attitude reflected by the Parliament is that domestic and family violence will not be tolerated.
  3. [106]
    The WWC Act has been recently amended to provide that a domestic violence history will also be relevant to the consideration of the Chief Executive in the assessment of eligibility.[34] Whilst there is no evidence that the Applicant is not the perpetrator of domestic violence, the fact that she has been impacted by it cannot be ignored by this Tribunal. The Tribunal has weighed this factor in this review.
  4. [107]
    Recent amendments to the WWC Act have been introduced into the Parliament which refine the analysis of risk.
  5. [108]
    The Explanatory Note to the Working with Children (Risk Management and Screening) and other Legislation Bill 2024 relevantly proposes that the test to establish the risk to children be redefined to be a risk to the safety of children test.[35]
  6. [109]
    The explanatory note in part explains the proposed change to be that the Bill:
  1. establishes a new statutory threshold for assessment requiring the chief executive to be satisfied an applicant presents a risk to the safety to children (which must be real and appreciable) in order to refuse an application;
  1. introduces a complementary ‘reasonable person’ test which will require the chief executive in determining whether a reasonable person would allow their children to have direct contact with the applicant while engaged in child-related work;[36]
  1. [110]
    The proposed amendments highlight the need for the Tribunal to focus upon the question of whether there is an appreciable risk to the wellbeing of children in determining an exceptional case.
  2. [111]
    The Tribunal makes the following findings:
    1. That the Applicant has moderated her driving to follow the road rules so that she now understands how failure to do so risks lives of others including potentially children;
    2. That the Applicant no longer drinks or socialises to excess;
    3. That the Applicant attends counselling sessions utilising the skills and techniques taught by the counsellor;
    4. That the Applicant uses support from her network which includes family, work colleagues and friends;  
    5. That the Applicant has addressed her domestically violent personal circumstances and now describes her personal arrangements as stable and positive;
    6. That in part her conduct on 3 July 2021 can be attributed to the domestically violent circumstances of her then living arrangements;
    7. That the Applicant has engaged in practices such as meditation to further her emotional regulation;
    8. That the Applicant has genuine significant regret and remorse, taking full responsibility for her actions on 3 July 2021, and now understands that different choices could have been made by her concerning her responses on 3 July 2021;
    9. That the Applicant has a sincere commitment to the welfare of her own children and those for whom she cares.
  3. [112]
    The Tribunal has been asked to consider the right of the Applicant to work in childcare and cites the sections of Article 6(1) of the ICESCR in this regard.[37]
  4. [113]
    The Tribunal notes that the right to work is not expressly guaranteed in the HRA and in this instance the entitlement to work in child-regulated employment in Queensland is subject to the eligibility criteria stated in the WWC Act. The applicant is free to choose other employment, but her right to work in child-regulated employment remains subject to the WWC Act criteria.
  1. [114]
    The Tribunal is satisfied that the HRA Act has been complied with and that it has:
    1. given proper consideration to human rights relevant to the decision;
    2. acted and made this decision in a way compatible with human rights; and
    3. in making the decision the Tribunal must act reasonably in the face of a statutory provision such as that containing the paramount principle.[38]
  2. [115]
    The Tribunal accepts the submission of the Respondent that the paramount principle justifies the limitation upon the rights of the Applicant and so a finding of exceptional case is compatible with the provisions of the HRA Act.
  3. [116]
    The child’s rights are protected by the HRA Act:

the right of the child to the protection that is needed by the child and is in the child’s best interests, because of being a child.[39]

  1. [117]
    Section 360 of the WWC Act requires the Tribunal to ensure that the protection from harm and the welfare and best interests of children is the paramount consideration when determining if an exceptional case exists.[40]
  2. [118]
    The Respondent submits that the finding of an exceptional case will still be compatible with section 13 of the HRA because any finding resulting in limitation on the Applicant’s human rights is still consistent with the object, purpose and paramount principle of the WWC Act, which is that the welfare and best interests of children are paramount.[41] It has been held that the human right affected by the HRA is her right to a fair trial under section 31 of the HRA. She has had the opportunity to present her case and provide submissions, as well as having a support person attend, and so there has been no limitation on this human right.[42]
  3. [119]
    I am satisfied that the correct and preferable decision is that the Department’s decision is set aside. In the Tribunal’s view this is not an exceptional case, because taking into account the totality of the evidence, the Tribunal finds the Applicant would not represent an unacceptable risk to children if she was issued with a working with children clearance.
  4. [120]
    I consider it is appropriate in this case to make a non-publication order under s 66 of the QCAT Act. I may make such an order if I am satisfied that it is necessary for any of the reasons specified in the QCAT Act s 66(2). The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice. The public interest is served through the publication of these reasons in a de-identified format in order to prevent the disclosure of information which could reasonably lead to the identification of children. The Tribunal prohibits the publication of any information which identifies, or could lead to the identification of, a child.

Footnotes

[1]  Decision On the Papers – QCAT hearing, 16 February 2024.

[2]  Oral Evidence of Psychotherapist, Mrs A.

[3]  QCAT Act, s 20(2).

[4]  Ibid, s 19(c).

[5]  WWC Act, s 5.

[6]  Ibid, s 6(a).

[7]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[8]Kent v Wilson [2000] VSC 98.

[9]  [2011] QCATA 291.

[10]  At [31].

[11]Briginshaw v Briginshaw (1938) 60 CLR 336.

[12]  QCAT Act, s 28.

[13]Chief Executive Officer, Department for Child Protection v Scott [No 2] (2008) WAR 125 [106], (Buss J).

[14]  Police Brief, BCS 14.

[15]   Emails dated 12 March 2024, BlueCard service to RTI Subpoena and response email dated 20 March 2024 BCS 45.

[16]  Reference F dated 18 January 2024.

[17]  Reference Y dated 5 February 2024.

[18]  Reference Z dated 28 February 2024.

[19]  Reference P dated 27 February 2024.

[20]  Mrs A’s letter dated 16 October 2023.

[21]Applicant’s final submissions, page 3.

[22]  [2015] QCAT 219.

[23]PGI v Public Safety Business Agency [2015] QCAT91, PWJ v Public Safety Business Agency [2016] QCAT 179.

[24]  Ibid.

[25]TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489.

[26]Director General of Justice and Attorney General v CMH [2021] QCATA 6.

[27]  At [23].

[28]  [2008] WASCA 28; 36 WAR 39.

[29]  Ibid.

[30]   Ibid, [84].

[31]Child Protection Act 1999 (Qld), s 9.

[32]  [2006] QCST 11, [97].

[33]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7].

[34]  WWC Act, s 221(3)(d).

[35]  The explanatory note to the Working with Children (Risk Management and Screening) and other legislation Bill 2024, page 4.

[36]  Ibid.

[37]  ICESCR, art (6)(1).

[38]Human Rights Act 2019 (Qld), s 58.

[39]  Ibid, s 26(2).

[40]  WWC Act, s 360.

[41]  Respondent’s submissions dated 13 January 2021 para 73-75.

[42]Director-General, Department of Justice and Attorney General v Gavin Anthony Dickson [2024] QCATA 38, [55].

Close

Editorial Notes

  • Published Case Name:

    PAX v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    PAX v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2024] QCAT 344

  • Court:

    QCAT

  • Judge(s):

    Member Hemingway

  • Date:

    13 Aug 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28
1 citation
Jump To
Cite 1 - (2008) WASCA 28
Chief Executive Officer, Department for Child Protection v Scott [No2] (2008) WAR 125
1 citation
Jump To
Cite 1 - (2008) WAR 125
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
1 citation
Jump To
Cite 1 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
2 citations
Jump To
Cite 1 - [2013] QCATA 303
Cite 2 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
2 citations
Jump To
Cite 1 - [2015] QCAT 219
Cite 2 - [2015] QCAT 219
Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6
2 citations
Jump To
Cite 1 - [2021] QCATA 6
Cite 2 - [2021] QCATA 6
Director-General, Department of Justice and Attorney-General v Gavin Anthony Dickson [2024] QCATA 38
2 citations
Jump To
Cite 1 - [2024] QCATA 38
Cite 2 - [2024] QCATA 38
Kent v Wilson (2000) VSC 98
3 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
Cite 3 - (2000) VSC 98
PGI v Public Safety Business Agency [2015] QCAT 91
2 citations
Jump To
Cite 1 - [2015] QCAT 91
Cite 2 - [2015] QCAT 91
PWJ v Public Safety business Agency [2016] QCAT 179
2 citations
Jump To
Cite 1 - [2016] QCAT 179
Cite 2 - [2016] QCAT 179
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489
2 citations
Jump To
Cite 1 - [2015] QCAT 489
Cite 2 - [2015] QCAT 489
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
1 citation
Jump To
Cite 1 - [2015] QCATA 190

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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