RKW v Director General Department of Justice and Attorney-General
[2024] QCAT 409
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- RKW v Director General Department of Justice and Attorney-General[2024] QCAT 409
- Add to List
RKW v Director General Department of Justice and Attorney-General[2024] QCAT 409
RKW v Director General Department of Justice and Attorney-General[2024] QCAT 409
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | RKW v Director General Department of Justice and Attorney-General [2024] QCAT 409 |
PARTIES: | RKW (applicant) v Director-General, Department of Justice and Attorney-General (respondent) |
APPLICATION NO/S: | CML010-22 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 23 September 2024 |
HEARING DATE: | 16 November 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Davies |
ORDERS: | The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is ‘exceptional’ within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – application for review of decision to issue negative notice – where applicant has a conviction – where the offence was not a serious or disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where there is other information under s 228 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether this is an exceptional case in which it would not be in the best interests of children for the applicant to be given a working with children clearance Education (Queensland College of Teachers) Act 2005 (Qld), s 285AA Human Rights Act 2019 (Qld), s 13, s 25, s 26, s 31, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 172, s 221, s 226, s 353, s 360 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6 ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102 Johnston v Carroll [2024] QSC 2 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | R Cross, Legal Officer, Department of Justice and Attorney-General |
REASONS FOR DECISION
Introduction
- [1]In 2021, the applicant (RKW) made an application to be issued with a working with children clearance, also known as a blue card. Although RKW had previously held a blue card and, subsequently, an exemption from holding a blue card based on his teacher registration, his application for a new blue card was unsuccessful. In December 2021 RKW was issued with what is referred to as a ‘Negative Notice’.
- [2]By an application to review instituted in January 2022 RKW seeks to have the Negative Notice decision reviewed by this Tribunal.
- [3]The reasons that the decision maker[1] gave for the issue of the negative notice were set out in a document dated 14 December 2021 (‘Reasons Document’).
- [4]In summary, the decision maker decided that RKW’s case was exceptional, and it would not be in the best interests of children for him to be issued with a blue card.
- [5]RKW’s application for review is based on the contention that his case is not exceptional. In support of this contention, he stated, in his application to the Tribunal, that he has ‘never caused harm to children or minors’ and that his ‘record in working with children has been exemplary and without fault’.[2] RKW developed and supplemented these contentions at the hearing.
- [6]At the conclusion of the hearing the Respondent’s position remained that RKW should not be issued with a blue card.
- [7]The ultimate issue in this review application is determining whether RKW’s case is exceptional. That determination is made on an evaluation of the evidence produced to the Tribunal in the context of the legislative provisions that govern this review.
Legislative framework and role of Tribunal
- [8]The principal legislative enactments relevant to a review by this Tribunal of the Negative Notice are the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) – under which the Negative Notice decision was made – and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) under which the Tribunal exercises its review jurisdiction.
- [9]The object of the WWC Act is to promote and protect the rights, interests, and wellbeing of children and young people in Queensland.It does this by a scheme requiring the development and implementation of risk management strategies and for the screening of persons.[3]
- [10]The Negative Notice decision is a chapter 8 reviewable decision – as that phrase is defined in s 353 of the WWC Act.
- [11]The purpose of a review by this Tribunal of the Negative Notice decision is to produce the correct and preferable decision.[4] In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.[5] That is to say, this Tribunal must come to a decision on the evidence before it.
- [12]Further, in deciding this matter, the Tribunal has all the functions of the decision maker. So, in coming to a decision, the Tribunal is guided by the principles set out in the WWC Act.
- [13]Those principles are, in summary, 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.[6]
- [14]The WWC Act provides, as a starting point, that a person in the position of RKW should be allowed to hold a blue card unless that person’s situation is an exceptional case. An exceptional case is one where the decision maker is satisfied that it would not be in the best interests of children for the applicant to be issued with a working with children clearance.[7]
- [15]Thus, in conducting this review of the Negative Notice decision, the ultimate issue for determination here is whether an exceptional case exists.[8]
- [16]The term ‘exceptional case’ is not specifically defined in the WWC Act. As to what constitutes an exceptional case is a question of fact and degree having regard to the intent and purpose of the legislation. Further, it is a term of common use in everyday language and the application of the concept of what constitutes an exceptional case should be unhampered by any special meaning or interpretation.[9]
- [17]In determining whether the Applicant’s circumstances constitute an exceptional case an appropriate framework for consideration of the material before the Tribunal is to consider:
- The matters that the WWC Act mandates must be considered including the matters set out in ss 226 and 228.
- Any other matters that are relevant to the decision[10] including the transferability of a blue card.
- The applicability of the Human Rights Act 2019 (Qld) (‘HRA’) to this application.
This consideration must be conducted having regard to the principles for the administration of the WWC Act, summarised in [13] above.
- [18]With respect to human rights relevant to the decision, the Tribunal is a ‘public entity’ and is therefore required to comply with s 58 of the HRA. Subject to some presently irrelevant exceptions, that section imposes two obligations on the Tribunal. They are the substantive obligation[11] not to make a decision in a way that is incompatible with human rights and the procedural obligation[12] not to fail to give proper consideration to a relevant human right in making a decision.[13]
- [19]The human rights that are relevant to RKW include the right to privacy and reputation[14] and the right to a fair hearing.[15] The human rights of children are also relevant to this review. Those rights relevantly are that every child has the right to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’ as provided for in s 26(2) of the HRA.
Evidence
- [20]Before outlining the evidence before the Tribunal, two preliminary observations are apposite. Firstly, determination of whether an exceptional case exists can only be made after evaluating all the available evidence.[16] In evaluating the evidence it must be recognised that the question of what is in the best interests of children does not lend itself to exact proof. It involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and the potential future risks to children’.[17]
- [21]Secondly, it should be emphasised that there was material before the Tribunal that was not before the decision maker at the time the Negative Notice decision was made.[18]
- [22]With this as background, what evidence was before the Tribunal?
- [23]The Respondent placed before the Tribunal two sets of documents. These consisted of firstly documents that were relevant to the Negative Notice decision including the Reasons document and related documents such as RKW’s criminal history.[19] The second set of documents tendered by the Respondent consisted of over 700 pages of documents that were produced as a result of notices to produce (NTP) issued by the Tribunal.[20] These NTP documents were not before the decision maker at the time of the issue of the Negative Notice. They consisted of, firstly, copies of documents provided by Brisbane Magistrates Court that related to domestic violence orders in respect of RKW and secondly material provided to the Tribunal by the Australian Health Practitioner Regulation Agency and the Queensland College of Teachers. This second class of documents can be broadly described as disciplinary information about RKW.
- [24]RKW gave oral evidence at the hearing. During his oral evidence, he was examined by the representative of the decision maker. No other witnesses were called by RKW. RKW also put before the Tribunal several documents that addressed topics such as the cancellation of his registration as a psychologist, his interaction with children whilst he was a teacher, medical issues arising from a brain injury that he suffered in motor vehicle accident in 1980 and related material.[21]
- [25]In this context it can be observed that, RKW did not have prepared for this proceeding any medical, psychological or psychiatric reports. There were, however, in evidence before the Tribunal, multiple psychological or psychiatric reports relating to RKW. The most recent of these reports was a report by a clinical neuropsychologist dated May 2021[22] and a follow up commentary by that clinician dated July 2021.[23] Indeed, it was apparent that RKW is no stranger to presenting himself for psychiatric or psychological evaluation. The evidence before the Tribunal included a neuropsychological report prepared as far back as November 2001,[24] and another report by the same practitioner was dated February 2014.[25] In addition there were before the Tribunal reports by psychiatrists prepared in 2008,[26] 2013,[27] and 2015.[28]
- [26]Whilst these reports were of some assistance, they shared a few shortcomings. The most recent report was over three years old at the time of the hearing, none of the reports were prepared for this application and none of the report writers were called as witnesses and so they could be questioned on their reports.
Discussion
The s 226 and s 228 matters
- [27]The WWC Act, in ss 226 and 228, mandates that the Tribunal, as the decision maker, must consider certain matters in deciding whether there is an exceptional case.
- [28]In summary, s 226 applies where, as here, RKW has been convicted of an offence and s 228 applies where ‘other relevant information exists.’
- [29]With respect to s 226, the Tribunal, in deciding if RKW’s case is exceptional, must have regard to certain specified matters regarding RKW’s conviction.[29] In addition to these specific s 226(2)(a) matters, the Tribunal, as befits legislation that has as its object the promotion and protection of the rights, interests and wellbeing of children and young people in Queensland,[30] must also have regard to ‘anything else’ in relation to RKW’s offence that the Tribunal reasonably considers relevant to the assessment of whether RKW’s case is exceptional.[31]
- [30]With respect to s 228, ‘other relevant information’ that was in evidence is domestic violence information and disciplinary information.[32] As with s 226, s 228 also contains an ‘anything else’ provision, in s 228(2)(g), that potentially widens the scope of the information that the Tribunal must have regard to if it reasonably believes the information to be relevant to the assessment of RKW’s application.[33]
RKW’s conviction for an offence
- [31]Turning first to the s 226 matters that are relevant to RKW’s application, there is no dispute that RKW has been convicted of an offence within the definition of ‘conviction’ under the WWC Act.[34] That conviction was in February 2015 and was for contravening a domestic violence (‘DV’) order in late 2014. The penalty imposed was a fine of $650 and no conviction was recorded. The Respondent did not contend that this offence was a serious or disqualifying offence as those terms are used in s 226(2).
- [32]
- [33]RKW’s conduct that gave rise to his February 2015 conviction is set out in the documentary evidence.[37] In summary, RKW’s then wife and RKW were living separately under the one roof at an address in suburban Brisbane. The police court brief discloses that a verbal argument between RKW and his estranged wife developed into destruction or damage to property and then into a physical altercation. The police brief records that RKW kicked his estranged wife on her backside on several occasions and punched ‘her once in the face with a closed fist.’ The information in the police brief was not materially contradicted by RKW in his oral evidence.
Disciplinary information
- [34]‘Disciplinary information’ is defined in schedule 7 of the WWC Act to include information received under the under the Education (Queensland College of Teachers) Act 2005 (Qld), section 285AA.
- [35]By a letter dated 12 March 2021[38] the Queensland College of Teachers (‘QCT’) sent the Respondent a letter under s 285AA advising of disciplinary information regarding RKW including the suspension of his teacher registration and the basis for that suspension.
- [36]The letter detailed that the suspension was based on the QCT forming a reasonable belief that RKW posed an unacceptable risk of harm to children. Key to this belief were the circumstances that gave rise to a 2016 decision of this Tribunal to cancel RKW’s registration as psychologist[39] and an earlier decision of the Health Practitioners Tribunal in 2004 which suspended RKW’s registration as a psychologist for 12 months.[40]
- [37]The QCT letter states that this conduct only came to the attention of the QCT after RKW was granted provisional registration as a teacher.
- [38]As at the date of QCT’s s 285AA letter the disciplinary process involving RKW had not been finalised. That process was finalised by an order of the Tribunal in its Occupational regulation jurisdiction. That order, delivered on 22 February 2022, was that the suspension of RKW’s teacher registration was to continue.[41]
- [39]In coming to decision the Tribunal, after referring to the Tribunal’s 2016 decision said, in terms germane to the issue here, that although RKW’s
conduct has never involved children, concerns exist about his misuse of power in relationships where he holds a position of trust, his appreciation of boundaries and ability to maintain those boundaries. Children are vulnerable and require the adults in their lives to assert and model very clear boundaries.
Discussion
- [40]The Respondent submits that with respect to RKW’s DV conviction his resorting to violence and aggression in a situation of conflict and emotional stress raises concerns about RKW’s ability to manage his anger, exercise restraint and judge appropriate behaviour when faced with personal conflict.
- [41]RKW, in his oral evidence and in his post hearing written submissions, addressed his DV conviction. He contended that he was the victim of domestic violence perpetrated by his wife. He asserts that during his relationship with his now ex-wife his conduct toward her was as a means of defence to her physical and verbal abuse of him.
- [42]In his post-hearing submissions RKW states the verity that ‘Domestic Violence is very wrong’ and expresses contrition and remorse for the conduct that led to his conviction.[42] I consider that his level of contrition was not matched by his oral evidence but rather was formulated in response to the Respondent’s post-hearing written submissions.
- [43]Whilst I accept that RKW’s relationship with his former wife was tempestuous, I consider that the DV offence and the circumstances that gave rise to the conviction, in particular, the level of violence used by RKW, as it is recorded in the police brief, supports a conclusion that RKW’s case is exceptional as that term is used in s 221 of the WWC Act.
- [44]In this context it is appropriate to observe that the DV conviction and the circumstances surrounding it, in addition to being relevant under s 226, are also relevant to a consideration of the mandatory matters set out in s 228(2)(a) which requires this Tribunal to, amongst other things, consider the circumstances of any DV order.
- [45]The DV information in evidence reveals that RKW has been named as the Respondent on two DV orders.[43] The first of these was issued in August 2003 and expired in August 2005. The second of these DV orders was made in November 2014 and expired in November 2016.[44] It was RKW’s breach of the second of these DV orders that gave rise to his DV conviction discussed above.
- [46]With respect to RKW’s disciplinary information I agree with the Respondent’s submissions that this information is directly relevant to the current proceeding. The disciplinary information shows that RKW transgressed professional boundaries with vulnerable patients whilst he was working as a psychologist. In particular, it shows that RKW engaged in a sexual relationship with a vulnerable patient during the currency of a therapeutic relationship.
- [47]In this regard it can be observed that children, as a class, are also vulnerable in that they rely on adults to always act in their best interests and to provide a safe and productive environment for them.
- [48]The Respondent submits that RKW’s case is exceptional. The Respondent relies on the following matters to support the contention that it is not in the best interests of children and young people for RKW to be issued with a blue card.
- That RKW’s evidence at the hearing disclosed unsatisfactory, unconvincing and improbable explanations for much of his behaviour.
- That RKW did not make appropriate concessions regarding the circumstances that gave rise to his suspension as a psychologist in 2004.
- That there is limited probative evidence supporting RKW’s claim that he has recovered substantially from a brain injury suffered in 1980.
- [49]The gravamen of RKW’s contention that his case is not exceptional is that, whilst he concedes that he has made some poor choices,[45] he submits that he does not pose a risk to children and young people. In support of this contention RKW points to a lack of ‘black marks’ as a blue card holder or teacher.[46] Whilst I note that RKW’s disciplinary information did not involve children, it did involve transgressions with vulnerable patients or clients where he held a position of trust.
- [50]I do not consider that the absence of ‘black marks’ in this matter renders RKW’s case unexceptional. What needs to be kept firmly in mind in coming to a decision is the best interests and welfare of children and young people. The application of this paramount principle supports a precautionary approach to making a decision in child related matters.
- [51]The evidence as a whole leads me to the conclusion that RKW’s transgressions – his DV offence and the disciplinary information – are such that I am comfortably satisfied that his case is exceptional. That is, it would not be in the best interests of children and young people for RKW to be issued with a blue card.
- [52]I am fortified by the fact that, as submitted by the Respondent, a blue card is unconditional and fully transferable.
- [53]In coming to this decision, I have considered the competing human rights relevant to this decision. To the extent that my decision places limits on RKW’s human rights I consider that the decision is justified by the factors set out in s 13 of the HRA.
Non-publication order
- [54]Three non-publication orders, pursuant to s 66 of the QCAT Act, were made by the Tribunal on 3 May 2023. Those three orders are in similar terms. The orders prohibit the publication of the contents of any document or thing filed in or produced to the Tribunal, of evidence given before the Tribunal and of any order made or reasons given by the Tribunal. In the circumstances of this matter, I do not consider that the non-publication orders of 3 May 2023 should be modified despite the Respondent’s submissions to the contrary. Those orders stand.
Footnotes
[1] Director, Blue Card Services (Screening Services) Department of Justice and Attorney-General.
[2] Application (Form 23) on page 4 of 6.
[3] WWC Act, s 5.
[4] QCAT Act, s 20(1).
[5] QCAT Act, s 20(2).
[6] WWC Act, ss 6, 360.
[7] WWC Act, s 221(1), (2).
[8] WWC Act, s 221(2).
[9] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]-[35].
[10] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
[11] HRA, s 58(1)(a).
[12] HRA, s 58(1)(b).
[13] Johnston v Carroll [2024] QSC 2, [65]-[77].
[14] HRA, s 25.
[15] HRA, s 31.
[16] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[17] Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [16].
[18] For example, there were over 700 pages of documents that were provided to the Tribunal and the Parties as a result of notices to produce directions made by the Tribunal under s 63 of the QCAT Act.
[19] Exhibit 1 – the BCS documents.
[20] Exhibit 2 – the NTP documents.
[21] These documents became exhibits 4-8.
[22] Exhibit 2 at pages 357-367.
[23] The commentary on earlier reports, a document which was attached to exhibit 4.
[24] Exhibit 2 at pages 234-247.
[25] Exhibit 2 at pages 205-227.
[26] Exhibit 2 at pages 248-255.
[27] Exhibit 2 at pages 338-352.
[28] Exhibit 2 at pages 353-356.
[29] WWC Act, s 226(2)(a).
[30] WWC Act, s 5.
[31] WWC Act, s 226(2)(f).
[32] WWC Act s 228(1).
[33] See also s 228(1)(iv).
[34] WWC Act, schedule 7.
[35] WWC Act, s 5.
[36] A proposition that is reinforced by s 228(1)(b)(i).
[37] The Queensland Police Court Brief is in exhibit 1, pages 25-27.
[38] The letter is at exhibit 1 at pages 29-31.
[39] The decision was in evidence at exhibit 2 at pages 556-578.
[40] A copy of the decision of the Health Practitioners Tribunal, Psychologists Board of Queensland v K [2004] QHPT 6 is at exhibit 2 pages 536-555.
[41] That decision is at exhibit 2 at pages 693-698.
[42] Pages 3 and 4 of RKW’s post-hearing written submissions.
[43] Exhibit 1 at pages 85-86.
[44] Exhibit 1 at page 26.
[45] Perhaps more accurately described by RKW in his written post-hearing submissions as ‘my despicable and unprofessional actions and behaviours.’
[46] In his written post-hearing submissions, he expresses this in various ways including ‘Since 2028 I have not been charged with any criminal or ethical violation.’