HXB v Director-General, Department of Justice and Attorney-General
[2024] QCAT 368
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- HXB v Director-General, Department of Justice and Attorney-General[2024] QCAT 368
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HXB v Director-General, Department of Justice and Attorney-General[2024] QCAT 368
HXB v Director-General, Department of Justice and Attorney-General[2024] QCAT 368
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | HXB v Director-General, Department of Justice and Attorney-General [2024] QCAT 368 |
PARTIES: | hxB (applicant) v Director-General, Department of Justice and Attorney-General (respondent) |
APPLICATION NO/S: | CML363-22 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 4 September 2024 |
HEARING DATE: | 6 December 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – administrative review – application to cancel a blue card negative notice – whether an exceptional case – where convicted of offences other than a ‘serious offence’ – consideration of mandatory factors Human Rights Act 2019 (Qld), s 8, s 9, s 13, s 22, s 23, s 25, s 26, s 27, s 29, s 31, s 34, s 36, s 48, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 28, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 221, s 226, s 228, s 294, s 304G, s 358, s 360, s 361, schedule 2, schedule 3, schedule 4, schedule 5 AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 39 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 |
APPEARANCES & REPRESENTATION: | |
Applicant: | SJ Hamlyn-Harris instructed by Robertson O'Gorman, Solicitors |
Respondent: | CA Davis, in-house solicitor |
REASONS FOR DECISION
- [1]In late 2005 HXB was charged with attempted murder of HXB’s spouse. At that time HXB held a ‘blue card’ entitling HXB to work in child related employment. HXB also held registration with the Queensland College of Teachers (‘QCT’) and had worked as a teacher for many years. HXB’s QCT registration was cancelled in early 2006.
- [2]Blue Card Services became aware of the charges and issued a negative notice on 23 October 2006. The evidence is that the Director of Public Prosecutions did not proceed with that charge. On 1 December 2006 HXB plead guilty and was convicted of two counts of grievous bodily harm, the offending having taken place on one occasion in late 2005. HXB was sentenced to imprisonment for two years and six months to be released on parole on 1 August 2007. The evidence is that HXB was released on parole in accordance with HXB’s sentence having served eight months.
- [3]A person may apply to cancel a negative notice if the application is made more than two years after the notice was issued or the previous application was made.[1] Most recently HXB applied to cancel the negative notice on 28 January 2022. By decision dated 10 November 2022, which HXB received on 14 November 2022, Blue Card Services refused to cancel the negative notice on the basis HXB’s case was an ‘exceptional case’ (‘the Decision’). A decision whether to cancel a negative notice is to be decided as if it were a decision about a working with children check application.[2]
- [4]
- [5]The issue for determination is whether HXB’s case is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’).
- [6]At the time of the oral hearing HXB had provisional QCT registration and had been employed as a teacher since the beginning of term 2, 2022. Following the hearing written submissions were filed.[4] HXB’s submissions advised that HXB had, since the oral hearing, received full registration from QCT.
- [7]The delay in finalising this proceeding since receipt of the final submissions is regrettable and relates to resourcing issues.
- [8]On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.[5] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[6] There is no presumption that the decision under review is correct.[7]
- [9]As HXB was not convicted of a serious offence as defined under the Act,[8] the presumption is that a working with children clearance (‘Clearance’)[9] should issue, and in this case a negative notice be cancelled, except where the Chief Executive or the Tribunal in the Chief Executive’s place is satisfied it is an exceptional case in which it would not be in the best interests of children for HXB to be issued with a Clearance and must issue a negative notice, or in this case decide not to cancel the negative notice.[10]
- [10]The object of the Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through risk management strategies and screening persons employed in particular employment.[11]
- [11]The Act is to be administered having regard to the principles that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[12]
- [12]
- [13]The Act does not define what is an ‘exceptional case’. The Court of Appeal provided some guidance in Commissioner for Children and Young People and Child Guardian v Maher & Anor[15] and found that it would be unwise to lay down any general rule, as each case is to be determined on its own facts and circumstances.
- [14]The Appeal Tribunal in Director-General, Department of Justice and Attorney-General v MAP[16] stated:
It is settled law that the determination of whether there is an ‘exceptional case’ involves the exercise of a broad discretion that should be ‘unhampered by any general rule and is to be construed in the particular context of the legislation’.
- [15]The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Eales[17]has also provided some guidance. In exercising the discretion as to whether there is an exceptional case the Tribunal undertakes a risk assessment. This usually involves identifying and considering risk factors and mitigants[18] in the context of the Act.
- [16]Section 226 of the Act sets out mandatory considerations to which regard is to be had, when deciding whether there is an exceptional case, where the person has been convicted of or charged with an offence. I address the considerations below.
- [17]HXB contends that HXB’s case is not an ‘exceptional’ case, HXB’s negative notice should be cancelled and HXB should be issued with a Clearance.[19]
Is it not in the best interests of children for HXB to be issued with a Clearance?
- [18]On the balance of probabilities, I find that HXB’s circumstances are not an exceptional case in which it would not be in the best interests of children to issue a Clearance. I find HXB’s risk of re-offending is low.
- [19]Assessing whether it would not be in the best interests of children for HXB to be issued with a Clearance involves an assessment of HXB’s risk of re-offending and therefore whether HXB poses a risk to children.
- [20]In addition to written statements of evidence filed, at the hearing HXB, two psychologists, a former student who is now a King’s Counsel who practices in criminal law, a senior teacher/long term friend and a representative of HXB’s then employer gave oral evidence. Documents produced by the Queensland Corrective Services, QCT and Queensland Police Service are in evidence before me.
- [21]The evidence is, and I accept, that HXB:
- co-operated with the police in relation to the 2005 offending;
- plead guilty to the offences of grievous bodily harm;
- was a model prisoner;
- since release on parole has made many positive changes including undertaking an anger and violence course, quite extensive counselling and further tertiary education;
- has developed self-awareness, situational awareness and strategies for remaining calm in difficult situations;
- has insight into HXB’s offending and its impact on its victims, does not seek to minimise the offending and accepts responsibility for HXB’s actions and their consequences and expressed remorse;
- has maintained the support of long term friends/senior teachers and former students some of whom gave evidence in support of HXB’s review application;
- has regained employment as a teacher;
- at the time of the hearing, had the support of HXB’s employer;
- is now better placed to resolve conflict within HXB’s relationships than HXB was in 2005.
- [22]These steps assist to mitigate the risk of harm to children.
- [23]I accept that in HXB’s role as a teacher and in other aspects of HXB’s life about which evidence was given in these proceedings HXB has had many interactions with children in challenging or potentially challenging situations. There is no evidence that HXB has ever had any adverse incidents directly relating to HXB’s interactions with children. On the contrary there is evidence of positive interactions in challenging circumstances.
- [24]HXB contends that a Clearance is required to allow HXB to perform extra-curricular responsibilities expected from a teacher and sports coaching. Blue Card Services submits, and I accept, that any detriment to HXB of not being granted a ‘blue card’ is not a relevant consideration.[20] I also accept that the granting of registration by QCT is not determinative nor is the mere passage of time.
- [25]Although HXB sought professional assistance in relation to HXB’s marriage and anger management issues a short time prior to committing the offences in 2005 I am satisfied, on the evidence before me, that the assistance obtained prior to the offending was not as extensive as HXB has since sought and obtained.
- [26]HXB’s police history was in evidence before me. HXB’s police history is relevant to whether HXB has a propensity to disobey the law and whether HXB is a good role model for children and young people.
- [27]HXB’s only other charge or conviction in HXB’s police history is that HXB pleaded guilty to one offence of driving without due care and attention in June 1977 when HXB was 17 years old for which HXB was fined $120.
- [28]
- [29]Blue Card Services submits and, I accept, that in this case, I should also have regard to the initial charge as another matter under section 228 of the Act. HXB was initially charged with attempted murder, a serious offence and a disqualifying offence[23]but the charge to which HXB plead guilty was reduced. The circumstances of the initial charge and the offence to which HXB plead and was found guilty arose out of the same serious domestically violent behaviour which occurred in late 2005. I am required to consider the factual matrix surrounding the offending behaviour. There is evidence before me, and I accept, that it is not unusual for a more serious charge to be laid, which is then reduced. I consider the penalty imposed by the Court upon the conviction, which fixed a parole date.
- [30]There is evidence before me that temporary protection orders and a protection order which expired in January 2008 related to the late 2005 offending behaviour. There is no other domestic violence information before me.
- [31]HXB’s police information and domestic violence information does not evidence an ongoing propensity to disobey the law.
- [32]I have considered the QCT documents which relate to disciplinary proceedings associated with the late 2005 offending behaviour and subsequent conviction.
- [33]The following evidence suggests HXB poses a risk to children:
- HXB no longer has a relationship with HXB’s children;
- HXB lacks ‘the stabilising influence of a spousal relationship’.[24]
- [34]Blue Card Services submits that I should be concerned about the reason for HXB’s child’s cessation of contact in 2009 and speculates that it relates to HXB’s behaviours that are not reflected in the material before me.
- [35]
- [36]
The procedural flexibility accorded to an administrative tribunal… does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.
- [37]The Tribunal has recognised that in review proceedings neither party bears a formal onus of proof.[28]An applicant has an evidential or practical onus to adduce evidence which supports its case as the Tribunal must make its decision on the material before it. As stated in Laidlaw v Queensland Building Services Authority[29]
In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.
- [38]Blue Card Services submits that I should be concerned about conflicts in HXB’s evidence and documents authored by others. I am not satisfied that I should draw the adverse inference sought. The authors of the documents did not give evidence and were not available to be questioned. It is not particularly surprising that HXB may give evidence, which does not precisely reflect the terminology used by another in recording their conversation. HXB’s child did not give evidence in this proceeding and was not available to be questioned.
- [39]There is no logically probative evidence upon which I could make a finding that the cessation of contact was related to HXB’s behaviours that are not reflected in the material before me nor that I should prefer the account of persons, who did not give evidence in these proceedings to HXB’s evidence.
- [40]It has long been recognised that it is not possible to impose conditions on the use of a ‘blue card’. A Clearance once obtained entitles the holder to work in any child-related employment.
- [41]I am satisfied that HXB has sufficient insight into the impact of HXB’s offending on victims and the community to reduce the likelihood of re-offending. Having regard to the evidence of the risks and the mitigants I am satisfied that the risk of HXB re-offending is low. Documents produced by Queensland Corrective Services evidence an assessment that HXB was at low risk of re-offending.
- [42]Having regard to the paramount principle of the Act, and considering the totality of the evidence, I find that HXB’s circumstances are not an exceptional case in which it would not be in the best interests of children to issue a Clearance at this time.
- [43]I set aside the Decision and substitute my decision that there is no ‘exceptional’ case.
Human Rights Act2019 (Qld) (‘HR Act’)
- [44]The HR Act commenced on 1 January 2020.
- [45]The parties made submissions in relation to the application of the HR Act, which I have considered.
- [46]In deciding this Application, I am acting as a public entity in an administrative capacity.[30] I accept that this proceeding and a decision under the Act potentially impacts HXB’s human rights[31] and the right of every child to protection.[32] I have considered HXB’s human rights and am satisfied that I afforded a fair hearing by considering the oral and written evidence and submissions made by each party, that I have interpreted statutory provisions to the extent possible in a way that is compatible with human rights and that the decision is compatible with human rights as the limitations on those rights are reasonable and justifiable.[33]
Non-publication order
- [47]I find that it is appropriate to make a non-publication order.
- [48]The Tribunal may make an order prohibiting the publication of information that may enable a person who appeared before the Tribunal to be identified.[34] The Tribunal may act on the application of a party or on its own initiative.[35] HXB seeks a non-publication order. Blue Card Services does not oppose the application.
- [49]The Act provides that a hearing of a proceeding for a QCAT child related employment review must be held in private.[36]
- [50]I consider that it is not in the public interest to identify HXB and HXB’s witnesses as to do so may identify HXB’s family. This decision is to be published only in a de-identified format. I order that publication of information that may enable HXB to be identified is prohibited other than to the parties.
Footnotes
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’), s 304G.
[2] Ibid, s 294.
[3] Exhibit 1, filed 9 December 2023.
[4] HXB submissions filed 22 December, 2023 and 19 January 2024; Blue Card Services’ submissions filed 12 January 2024.
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 24.
[6] Ibid, s 20.
[7]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
[8] The Act, s 15, schedule 2 and schedule 3.
[9] Previously known as a positive notice.
[10] The Act, s 221(2).
[11] Ibid, s 5.
[12] Ibid, s 6.
[13] Ibid, s 358.
[14] Ibid, s 360.
[15] [2004] QCA 492.
[16] [2022] QCATA 39, [19] (references omitted).
[17] [2013] QCATA 303.
[18] Often referred to as protective factors.
[19] The Act, s 221(2).
[20]AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248, [22].
[21] The Act, schedule 2.
[22] Ibid, s 16, schedule 4, schedule 5.
[23] Ibid, schedule 2, schedule 4.
[24] Exhibit 8, Report [55].
[25] QCAT Act, s 28(3)(b).
[26] Ibid, s 28(3)(d).
[27] (2014) 226 FCR 555, 580 [97] (Flick and Perry JJ).
[28]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[29] [2010] QCAT 70, [23] (references omitted).
[30] HR Act, s 9(4).
[31] Ibid, s 22, s 23, s 25, s 27, s 29, s 31, s 34, s 36.
[32] Ibid, s 26(2).
[33] Ibid, s 8, s 13, s 26(2), s 31, s 34, s 48, s 58.
[34] QCAT Act, s 66.
[35] Ibid, s 66(3).
[36] The Act, s 361.