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DXB v Director-General, Department of Justice and Attorney-General[2024] QCAT 390

DXB v Director-General, Department of Justice and Attorney-General[2024] QCAT 390

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

DXB v Director-General, Department of Justice and Attorney-General [2024] QCAT 390

PARTIES:

DXB

(applicant)

v

director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML196-22

MATTER TYPE:

Childrens matters

DELIVERED ON:

10 September 2024

HEARING DATE:

2 November 2023

16 February 2024

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

  1. The Application for miscellaneous matters filed 16 February 2024 seeking to:
    1. amend the Decision of Member Kent dated 4 August 2023 in relation to destruction of the notice to produce documents is dismissed.
    2. dismiss the Application to review a decision filed 28 June 2022 is allowed.
  2. The Application to review filed 28 June 2022 is dismissed pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – administrative review – blue card – where negative notice issued – whether an exceptional case – where charged with offences other than a ‘serious offence’ – consideration of mandatory factors

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Blue Card Services sought to amend Tribunal’s decision to destroy confidential documents – where Blue Card Services failed to make submissions as to the Tribunal’s power where the decision had not been appealed or sought to be re-opened  or renewed – where timeframe for appeal or re-opening or renewal expired – where Blue Card Services sought the application to review be dismissed for failure by the applicant to comply with directions – whether non-compliance caused unnecessary disadvantage

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 48, s 63, s 93, s 133, s 138, s 142, s 143, schedule 3

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 304G, s 358, s 360

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 Lister (No 2) [2011] QCATA 87

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

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Laidlaw v Queensland Building Services Authority [2010] QCAT 70

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented on 16 February 2024

Respondent:

CA Davis, in house solicitor

REASONS FOR DECISION

  1. [1]
    On 4 August 2023 a non-publication decision was made. These reasons are only published in a de-identified form.
  2. [2]
    DXB held a “blue card” entitling DXB to volunteer as a children’s sporting coach. In early 2021, Blue Card Services having become aware of a change in DXB’s police information sought submissions as to why DXB’s blue card should not be cancelled and a negative notice issued. Sometime later Blue Card Services decided to cancel DXB’s blue card and issue a negative notice (‘the Decision’).[1] DXB sought review of the decision (‘the Application’).[2]
  3. [3]
    By directions dated 16 March 2023 this review Application was listed for a final hearing at 9.30am on 2 November 2023.  The final hearing was confirmed by direction made 28 September 2023.  On 2 November 2023 DXB did not appear at the hearing.  Through enquiries with DXB’s ex-spouse, I ascertained that DXB was on remand as DXB had been refused bail in respect of more recent charges than those relied upon in the Decision.  I adjourned the hearing to 9.30am on 16 February 2024 to allow the relevant Court to deal with some charges in December 2023 and directed that if DXB failed to attend the adjourned hearing without prior written reasonable excuse the Tribunal may strike out the Application or proceed to determine it in DXB’s absence. 
  4. [4]
    The Tribunal records show that a Notice of Hearing was issued to the parties on 17 January 2024 in relation to the adjourned hearing. Relevantly it states at Note 1, ‘If you fail to appear at the hearing, the Tribunal may proceed and make orders in your absence.’
  5. [5]
    The adjourned in-person final hearing was confirmed by directions made on 15 January 2024 and 5 February 2024.
  6. [6]
    Blue Card Services placed before the Tribunal emails between Blue Card Services and DXB dated 13, 14 and 15 February 2024 as to whether DXB intended to appear at the final hearing, and which notified DXB of its intention to seek the dismissal of DXB’s review proceedings. 
  7. [7]
    DXB’s emails variously state that:

I will not be able to attend at this point in time, due to work commitments, and due to the emotional and mental toll this drawn out process has taken on myself, and my family.[3]

…in answer to your question no I wont be attending on Friday, and if your decision on Friday has anything to do with any form of justice you would give me my Blue Card back and if there was any doubt about wether im capable or a danger do your due diligence and call any club I coach at or better still call anyone of the parents and have a listen to what they say, theres your JUSTICE (sic)[4]

  1. [8]
    DXB did not apply for orders that the final hearing be adjourned to a time when DXB was able to attend. 
  2. [9]
    On 16 February 2024 DXB did not appear in person. I arranged to telephone DXB and DXB indicated DXB did not wish to participate because he needed to work but stayed on the line and participated to some limited extent.  
  3. [10]
    I stood the matter down to consider Blue Card Services’ submission that DXB’s Application to review ought to be dismissed and its Application for amendment to the destruction orders made 4 August 2023 but when the hearing was resumed DXB did not answer the Tribunal’s calls. If DXB had attended in person, as required by the Tribunal’s directions, DXB would have been in the Tribunal precinct and could have further participated.
  4. [11]
    In the circumstances, I decided to proceed in DXB’s absence.[5] I made directions for submissions to be filed in relation to the Application for miscellaneous matters and final written submissions in relation to the Application to review filed 28 June 2022 and for the Application for miscellaneous matters to be determined prior to finally determining the Application to review filed 28 June 2022. 
  5. [12]
    Submissions were received and I now proceed to determine the applications.[6] The delay in finalising these applications following the receipt of submissions is regrettable and relates to resourcing issues.

Application for miscellaneous matters – amend ‘direction’ in relation to destruction of the notice to produce documents and for dismissal

  1. [13]
    I dismiss the Application for review filed by DXB and otherwise dismiss the Application for miscellaneous matters filed 16 February 2024.

Amend ‘direction’ in relation to destruction

  1. [14]
    I dismiss Blue Card Services’ application in so far as it seeks amendment to the destruction decision dated 4 August 2023.
  2. [15]
    On 16 February 2024 Blue Card Services applied to amend a decision made 4 August 2023, in relation to destruction of Notice to Produce (‘NTP’) documents, produced to the Tribunal by three non-party State Government Agencies (‘the Agencies’), which provided that:

All parties, and the Queensland Civil and Administrative Tribunal, must undertake to destroy the material received at the end of the proceedings.

  1. [16]
    Blue Card Services submits that ‘All parties’ should be amended to ‘The Applicant’ and that it ought to be permitted to retain the redacted and paginated NTP 1-160 that was filed in the Tribunal on 14 September 2023 upon undertaking to:
    1. destroy all other copies of the NTP material; and
    2. not use the redacted and paginated NTP 1-160 for any purpose other than for the purpose of administration of its legislative functions under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) or in connection to any application pursuant to the WWC Act made by the Applicant.
  2. [17]
    DXB’s submissions do not clearly address this issue.
  3. [18]
    I am not satisfied that the destruction decision should be amended. 
  4. [19]
    Blue Card Services submits that:
    1. it is not necessary for it to destroy the NTP material as it receives material that is equally sensitive and confidential on a regular basis directly, which it is not required to destroy.
    2. it is subject to an implied undertaking to use any material only for the purpose for which it was first obtained.
    3. it is subject to various legislative obligations and the Department of Justice and Attorney General’s Code of Conduct in dealing with documents.
    4. ‘the end of the proceeding’ creates difficulties because regardless of any decision made by the Tribunal the proceeding and the blue card review proceedings generally will not end for it and DXB when a final decision with reasons are handed down, because if the Decision is set aside it may need to determine whether there is any new relevant information relating to DXB on each occasion DXB seeks to renew DXB’s blue card, or if the Decision is confirmed, on each occasion DXB seeks to cancel the negative notice.[7] 
    5. it is in the public interest and the interests of justice for it to keep the NTP material because some of the NTP material is favourable to DXB, the material may be relevant to and supportive of further applications DXB may make to Blue Card Services, and it may avoid the unnecessary waste of public resources in future e.g. being required to seek the same material again in respect of possible further review proceedings brought by DXB in the Tribunal.
    6. the amendment would assist it to afford DXB natural justice and procedural fairness as Blue Card Services is now aware of relevant information contained in the NTP documents and it should have regard to those source documents rather than rely on other documents which may refer to them such as submissions in this proceeding.[8]
  5. [20]
    In Blue Card Services’ submissions it refers to seeking to amend ‘the direction’. The form of decision made by Member Kent makes it clear that it is not a direction.  Section 63 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) refers to the making of an order requiring a person who is not a party to produce documents. Schedule 3 of the QCAT Act provides that the term decision means an order or direction.
  6. [21]
    On 16 February 2024 I asked Blue Card Services to address the basis on which it submits I have power to amend another Member’s decision. Its submissions do not address that point. Having specifically raised the issue I am not inclined to direct further submissions be filed on that point.
  7. [22]
    Blue Card Services is under an obligation to use the documents only for this Tribunal proceeding. The submissions seek to expand the definition of proceeding to allow the NTP documents to be used more broadly in respect of other applications by DXB to it. 
  8. [23]
    Proceeding is relevantly defined in the QCAT Act as ‘a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal’.[9]
  9. [24]
    By Amended Decisions dated 30 May 2023 the Tribunal issued notices to produce to the Agencies, which invited the Agencies to make submissions in relation to the documents sought. Two of the three Agencies specifically requested that the documents be destroyed once the matter before the Tribunal is finalised. No doubt Member Kent considered those submissions in making her decision of 4 August 2023. 
  10. [25]
    If Blue Card Services wanted to challenge Member Kent’s decision, it ought to have taken steps to do so prior to the adjourned final hearing. It did not seek leave to appeal the decision[10] or to renew[11] or re-open the decision[12] nor did it make any submissions in relation to why those avenues did not apply in the circumstances. The time for seeking leave to appeal and to appeal the decision[13] or to renew or to re-open has long expired. In the absence of the decision being properly challenged I am not persuaded that I have the power to amend it.

Application to dismiss

  1. [26]
    I allow Blue Card Services’ application in so far as it seeks dismissal of the Application to review pursuant to section 48 of the QCAT Act.
  2. [27]
    Blue Card Services submits that I should dismiss DXB’s Application to review pursuant to section 48 of the QCAT Act. DXB’s submissions do not clearly address this issue.
  3. [28]
    Blue Card Services says that DXB has acted in a way that unnecessarily disadvantaged it by failing to attend the hearing on 2 November 2023, failing to advise that DXB was on remand and unable to attend on that occasion, failing to attend the hearing on 16 February 2024, failing to advise until Blue Card Services enquired that DXB did not plan to attend the adjourned hearing and failing to comply with directions.
  4. [29]
    A review of the Tribunal’s file shows that DXB did not comply with directions made by the Tribunal on 19 July 2022 and 16 March 2023 and only complied when directions were made which provided that if there was further non-compliance without reasonable excuse the Application may be dismissed.
  5. [30]
    On 16 February 2024, DXB stated that while on remand DXB was not allowed to make calls. Whilst I accept that DXB’s ability to communicate may have been limited, DXB’s ex-spouse, with whom I spoke at the first hearing, had been informed that DXB was on remand. In those circumstances, I am not satisfied that it was impossible for DXB to inform the Tribunal or request someone on DXB’s behalf, such as DXB’s ex-spouse or DXB’s lawyer retained for the criminal proceedings, to inform the Tribunal that DXB would not be able to attend the first hearing. Even if DXB had a reasonable excuse for not attending or seeking an adjournment on that occasion about which there is at least some doubt, the evidence is that DXB knew of the adjourned hearing date and knew that if DXB failed to attend that DXB’s review Application may be dismissed. 
  6. [31]
    Direction 4 made on 2 November 2023 clearly stated this.  Blue Card Services’ emails in the days leading up to the adjourned hearing clearly stated its intention to seek to have DXB’s Application dismissed if DXB did not attend. 
  7. [32]
    DXB claimed that work commitments prevented DXB from attending the adjourned hearing. I accept that DXB’s period in remand may have contributed to making it more difficult for DXB to take further time off work to attend to legal matters.
  8. [33]
    However, DXB did not explain why DXB did not communicate with the Tribunal at all and did not communicate with Blue Card Services to advise DXB’s situation until it sent emails to DXB. 
  9. [34]
    DXB did not make any submissions or give any evidence that could form a basis for a finding that DXB was not aware that failing to attend the hearing could lead to negative consequences, was not familiar with the Tribunal’s practices and procedures and did not have the capacity to understand and act on the Tribunal’s directions.
  10. [35]
    Blue Card Services submits that DXB has caused it unnecessary disadvantage and has acted deliberately. DXB did not make any submissions or give any evidence that could form a basis for a finding that DXB did not act deliberately. 
  11. [36]
    Blue Card Services submit that I should dismiss the Application to review rather than proceed to determine it essentially on the papers or re-list the hearing on another date because:
    1. the failure of DXB to attend and deciding the review on the papers deprives it and the Tribunal of the opportunity to question DXB at a hearing and to take steps to ensure that DXB understands the nature of the assertions made and the legal implications of the assertions;
    2. the failure of DXB to attend and deciding the review on the papers deprives DXB of the opportunity to respond to assertions made and to explore evidence as to DXB’s insights into DXB’s offending behaviour;
    3. the failure of DXB to attend and deciding the review on the papers deprives it of the opportunity to question witnesses for DXB at a hearing;
    4. the Tribunal could have little confidence that DXB would attend on a third hearing date.
  12. [37]
    DXB’s submissions do not address any of these matters.
  13. [38]
    On 16 February 2024, DXB confirmed to me that DXB did not wish to participate in a hearing because DXB needed to work and requested that I consider the documents filed and make a decision in relation to the Application to review. In the circumstances, I do not consider that a third hearing date should be allocated. The Tribunal’s resources are extremely limited. The failure of DXB to advise the Tribunal DXB would not be able to attend has deprived other parties to proceedings before the Tribunal of the opportunity to have their matter heard on the dates allocated to DXB.  Applicants are required to take responsibility to progress the proceedings that they commence.
  14. [39]
    On 16 February 2024, DXB somewhat flippantly said that DXB’s non-attendance was essentially only wasting DXB’s time. I do not accept that statement. The non-attendance wasted Blue Card Services’ and the Tribunal’s resources.
  15. [40]
    On the balance of probability, I find that DXB’s failure to attend and failure to comply with Tribunal directions has caused Blue Card Services unnecessary disadvantage.  Blue Card Services has been required to allocate resources to DXB’s proceeding, which it would not have had to allocate if DXB had attended in person at the adjourned hearing. Whilst regrettably parties to proceedings do not always comply with all directions made by the Tribunal causing the other party disadvantage, DXB’s non-compliance is more extensive than what may reasonably be expected.
  16. [41]
    Where the party causing the disadvantage is the applicant the Tribunal may dismiss the proceeding.[14] 
  17. [42]
    I find that the Application to review a decision ought to be dismissed. 

Application to review a decision filed 28 June 2022

  1. [43]
    In the alternative, I have also considered the Application to review on its merits as requested by DXB.
  2. [44]
    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.[15] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[16] There is no presumption that the decision under review is correct.[17]
  3. [45]
    The Tribunal has recognised that an applicant in review proceedings has no formal onus of proof but rather 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[18] 

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.

  1. [46]
    The object of the WWC 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.[19]
  2. [47]
    The WWC 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.[20]
  3. [48]
    The decision under review is that DXB’s case is an exceptional case in which it would not be in the best interests of children for the chief executive or the Tribunal in the chief executive’s place to issue a working with children clearance, which is a child-related employment decision.[21] Such decisions are to be reviewed under the principle that the welfare and best interests of a child are paramount.[22]
  4. [49]
    DXB contends that DXB’s case is not an ‘exceptional’ case and DXB should be re-issued with a Clearance.[23] 

Is it not in the best interests of children for DXB to be issued with a Clearance? 

  1. [50]
    On the balance of probability, I find that DXB’s circumstances are an exceptional case in which it would not be in the best interests of children to issue a Clearance. I am not satisfied that DXB’s risk of re-offending is low.
  2. [51]
    Section 226 of the WWC 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.
  3. [52]
    Section 228 of the WWC Act sets out mandatory considerations to which regard is to be had, when the chief executive or the Tribunal in her place is aware of domestic violence information about the person.
  4. [53]
    I address the considerations below.
  5. [54]
    The WWC 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[24] 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.
  6. [55]
    The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Eales[25] 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[26] in the context of the WWC Act.
  7. [56]
    Assessing whether it would not be in the best interests of children for DXB to be issued with a Clearance involves an assessment of DXB’s risk of re-offending or inappropriate behaviour and therefore whether DXB poses a risk to children.
  8. [57]
    DXB’s updated police history as at 9 February 2024 is in evidence before me.[27] The offences listed are not serious offences or disqualifying offences. They do not directly involve harm to a child.
  9. [58]
    DXB has convictions for theft, using indecent language, being drunk in a public place, drug related offences, possessing tainted property, imposition, and two contraventions of a domestic violence order (‘DVO’) imposed in 2018 which was current to 17 December 2023. Most recently DXB was convicted of drug related charges on 19 January 2024.  It also shows charges for unlawful stalking, intimidation, harassing or abuse and a charge relating to contravention of an order. Transcripts of sentencing remarks are before me.[28]
  10. [59]
    DXB has filed limited documents in support of DXB’s Application. DXB’s written evidence is that DXB is remorseful for DXB’s behaviour towards DXB’s ex-spouse, that DXB’s behaviour was out of character, and that DXB has never harmed a child.
  11. [60]
    As referred to earlier in these reasons, there is evidence before me that DXB was charged with offences in 2023, after the Decision was made and while these review proceedings were on foot. DXB has not sought permission to file any evidence about the status of those charges or the circumstances which lead to them.
  12. [61]
    In reviewing the Decision, I take into account DXB’s police history not to re-prosecute the offences but because it is relevant to protecting children. It raises issues about whether DXB has a propensity to disobey the law, whether DXB is able to exercise self-control and judgement and whether DXB is a good role model for children.
  13. [62]
    The evidence is that DXB’s offending has occurred over a relatively long period with the offences involving domestic violence with DXB’s ex-spouse in 2020 and the most recent charges apparently involving an ex-intimate partner in 2023.[29] There is some evidence before me that DXB was aware of the most recent DVO being sought and deliberately evaded police to avoid the consequences of being served with the order so DXB could not be in contravention of the order by continuing to contact the aggrieved. DXB has not sought to respond to or explain these allegations in these proceedings. In the absence of such explanation, it is difficult to accept that domestically violent behaviour is out of character noting that domestic violence is not confined to physical violence.
  14. [63]
    There is some evidence before me that a factor in DXB’s marriage breakdown was DXB’s use of illicit drugs. As stated earlier in these reasons, there is evidence before me that DXB was convicted of drug related offences in January 2024.
  15. [64]
    I accept that there is evidence before me from DXB’s ex-spouse and a mother of a child DXB coached as to DXB’s positive interactions with children. DXB’s ex-spouse and the author of the reference gave these references prior to the 2023 charges for stalking, intimidation and harassment and prior to the 2024 drug conviction. DXB’s failure to attend the adjourned hearing and DXB’s submission that I should simply consider the evidence filed means that these witnesses did not confirm their evidence and they were not questioned.
  16. [65]
    I place less weight on those references than I might otherwise have if they had been given after the most recent conviction and charges and they had confirmed their evidence at a hearing. 
  17. [66]
    Blue Card Services submits, and I accept, that any detriment to DXB of not being granted a ‘blue card’ is not a relevant consideration.[30]
  18. [67]
    DXB submits that the children DXB was coaching and would have coached have been deprived of the benefit of DXB’s coaching and mentoring skills. Blue Card Services submits, and I accept, that any benefit to children of DXB being granted a ‘blue card’ is not a relevant consideration.
  19. [68]
    There is evidence before me that following the DVO contraventions, where the aggrieved was DXB’s ex-spouse, DXB sought professional assistance to reflect upon DXB’s behaviour, develop strategies to deal with situations of stress to minimise the likelihood of such inappropriate behaviour re-occurring.  
  20. [69]
    A reference from the provider of this assistance is in evidence before me.[31] DXB’s failure to attend the adjourned hearing and submission that I should simply consider the evidence filed means that the author did not confirm his evidence and was not questioned. This reference was also given prior to the 2023 charges and 2024 conviction. I place less weight on this evidence than I might otherwise have if it had been given after the most recent conviction and charges and the author had confirmed the evidence at a hearing.
  21. [70]
    The evidence before me in relation to the 2023 charges shows a similarity in behaviour to the behaviour DXB exhibited in 2020 towards DXB’s ex-spouse. The 2023 charges therefore raise significant concerns as to whether DXB has been able to successfully implement strategies to deal with adverse situations particularly in circumstances where DXB was aware that such behaviour was likely to adversely affect DXB’s entitlement to hold a blue card.[32] It also raises concerns about DXB’s ability to exercise appropriate judgement, to exercise self-control and that DXB has a propensity to disregard the law and therefore raises concern as to DXB’s ability to role model lawful behaviours for children.
  22. [71]
    The evidence before me does not clearly demonstrate that DXB:
    1. has accepted responsibility for DXB’s actions;
    2. has sufficient insight into DXB’s offending and their impact on its victims and the community;
    3. is able to moderate DXB’s communications in stressful situations.[33] 
  23. [72]
    Accepting responsibility and having insight has been recognised as an important mitigant to re-offending.[34]
  24. [73]
    DXB’s submissions are to the effect that Blue Card Services should seek out witnesses who could attest to DXB’s positive role modelling to children who DXB has coached.  DXB is the applicant and was directed on a number of occasions to file statements of evidence in support of DXB’s Application to review. In this proceeding it is not for Blue Card Services or the Tribunal to seek out such information on DXB’s behalf.
  25. [74]
    Although DXB is seeking a blue card so that DXB can resume community sports coaching, a Clearance once obtained entitles the holder to work in any child-related employment. 
  26. [75]
    I am not satisfied on the evidence before me that DXB has discharged the evidential onus. There is insufficient evidence before me to find that DXB’s risk of re-offending is low. 
  27. [76]
    If I had not been satisfied that DXB’s Application should be dismissed pursuant to section 48 of the QCAT Act, I would find that the correct and preferable decision is to confirm the Decision.

Human Rights Act 2019 (Qld) (‘HR Act’)

  1. [77]
    The HR Act commenced on 1 January 2020. Blue Card Services made submissions in relation to relevant competing human rights under the HR Act. DXB did not make any submissions about the application of the HR Act.
  2. [78]
    In deciding this Application, I am acting as a public entity in an administrative capacity.[35] I accept that this proceeding and a decision under the WWC Act potentially impacts DXB’s human rights[36] and the right of every child to protection.[37]  I have considered DXB’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 (to the extent able given DXB’s failure to attend as directed), I made directions on 16 February 2024 to afford DXB the opportunity to file submissions in response to Blue Card Services’ submissions but DXB filed limited submissions, 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.[38]  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. The limitation of DXB’s human rights is consistent with the paramount principle in the WWC Act. 

Footnotes

[1]  Decision dated 20 June 2022.

[2]  Filed 28 June 2022.

[3]  Sent 14 February 2024 12.43am.

[4]  Sent 15 February 2024 1.33am.

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 93 (‘QCAT Act’).

[6]  Blue Card Services submissions filed 1 March 2024; DXB’s submissions filed 6 March 2024, by email dated 5 March 2024 at 9.54pm.

[7]  WWC Act, s 304G(2)(a).

[8]  Ibid, s 221, s 228.

[9]  QCAT Act, schedule 3.

[10]  Ibid, s 142(3)(a)(ii).

[11]  Ibid, s 133.

[12]  Ibid, s 138.

[13]  Ibid, s 143.

[14]  QCAT Act, s 48(2).

[15]  Ibid, s 24.

[16]  Ibid, s 20.

[17] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[18]  [2010] QCAT 70, [23] (references omitted).

[19]  WWC Act, s 5.

[20]  Ibid, s 6.

[21]  Ibid, s 358.

[22]  Ibid, s 360.

[23]  Ibid, s 221(2).

[24]  [2004] QCA 492.

[25]  [2013] QCATA 303.

[26]  Often referred to as protective factors.

[27]  Handed up on 16 February 2024.

[28]  In particular, 10 December, 2014; 19 June, 2013; 14 February, 2020, which specifically noted that further offending may affect DXB’s ability to hold a blue card; 15 October 2020 which imposed a condition that DXB participate in a domestic violence program.

[29]  1985, 1990, 2013, 2014, 2020, 2023.

[30] AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248, [22].

[31]  Letter dated 23 September 2021.

[32]  BCS80 - Sentencing remarks.

[33]  DXB’s submissions made during the hearing on 16 February 2024 and correspondence in evidence before me between Blue Card Services and DXB indicates an inability or unwillingness to communicate respectfully while experiencing heightened emotions. 

[34] Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [51] – [55].

[35]  HR Act, s 9, s 58.

[36]  Ibid, s 22, s 23, s 25, s 27, s 29, s 31, s 34, s 36.

[37]  Ibid, s 26(2).

[38]  Ibid, s 8, s 13, s 26(2), s 31, s 34, s 48, s 58.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2024] QCAT 390

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    10 Sep 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
AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248
2 citations
Jump To
Cite 1 - [2012] QCATA 248
Cite 2 - [2012] QCATA 248
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 Lister (No 2) [2011] QCATA 87
2 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87
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
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
2 citations
Jump To
Cite 1 - [2010] QCAT 70
Cite 2 - [2010] QCAT 70

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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