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YDA v Director-General, Department of Justice and Attorney-General[2024] QCAT 414

YDA v Director-General, Department of Justice and Attorney-General[2024] QCAT 414

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

YDA v Director-General, Department of Justice and Attorney-General [2024] QCAT 414

PARTIES:

YDA

(applicant)

v

Director-General, Department of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

CML034-23

MATTER TYPE:

Childrens matters

DELIVERED ON:

19 September 2024

HEARING DATE:

1 August 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

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 s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Pursuant to s 66(1) and s 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), subject to further order of the Tribunal, the publication of:
    1. the contents of a document or thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal;
    3. any decision or order made or reasons given by the Tribunal,

is prohibited to that extent that it could identify or lead to the identification of the Applicant, any family member of the Applicant, any child, or any non-party to the proceeding.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where respondent issued negative notice under the Working With Children (Risk Management and Screening) Act 2000 (Qld) – where respondent refused to cancel a negative notice – where applicant applies to review decision – where domestic violence information – where police information – where issue concerning mental health management – whether Tribunal satisfied that it is an ‘exceptional case’ in which it would not be in the best interests of children to issue to the applicant a working with children clearance

Human Rights Act 2019 (Qld), s 13, s 48, s 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, 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 Lister (No 2) [2011] QCATA 87

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

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

Re TAA [2006] QCST 11

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

K. Malouf, Advocacy Officer

REASONS FOR DECISION

Introduction

  1. [1]
    By an Application to review a decision filed on 27 January 2023 (‘the Application’), the Applicant seeks to review a decision of the Respondent made on 12 January 2023 (‘the Decision’). By the Decision, the Respondent refused to cancel a negative notice issued under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the WWCA’).
  2. [2]
    The negative notice was issued on 3 January 2014 and was continued on 4 January 2019 and again on 9 April 2019.

Jurisdiction

  1. [3]
    A person who is not a disqualified person may apply, within the prescribed period[1] and as otherwise provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), to the Tribunal for a review of a ‘chapter 8 reviewable decision’.[2]
  2. [4]
    A ‘chapter 8 reviewable decision’ about a person means, relevantly, a decision of the Chief Executive as to whether or not there is an exceptional case for the person if, because of the decision, the chief executive refused to cancel a negative notice issued to the person.[3]
  3. [5]
    A ‘disqualified person’ is defined in s 17 of the WWCA. The Respondent does not suggest that, and I consider that there is no basis for finding that, the Applicant is a disqualified person within the meaning of that term.
  4. [6]
    I am satisfied that the Tribunal has jurisdiction to decide the Application.

The Tribunal’s role

  1. [7]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[4] The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[5] The Tribunal must have access to any information that could have been or was considered by the original decision‑maker, plus any other material that becomes available and may be lawfully considered.[6]

The legislative framework

  1. [8]
    A ‘child-related employment decision’ is to be reviewed under the principle that the welfare and best interests of a child are paramount.[7] A ‘child-related employment decision’ means a chapter 8 reviewable decision’.[8]
  2. [9]
    At the date of the Decision, s 221 of the WWCA provided (as it still does):
  1. The chief executive must issue a working with children clearance to the person if the chief executive—
  1. is not aware of any relevant information about the person; or
  1. is not required to issue a negative notice to the person under subsection (2).
  1. (2)
    The chief executive must issue a negative notice to the person if the chief executive—
  1. (a)
    is aware of relevant information about the person; and
  1. (b)
    is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person.
  1. For subsections (1) and (2), the following information about the person is relevant information—
  1. information that the person has—
  1. a charge for an offence other than a disqualifying offence; or
  1. a charge for a disqualifying offence that has been dealt with other than by a conviction; or Note— For charges for disqualifying offences that have not been dealt with, see chapter 7, part 4, division 4 and sections 199, 295(1) and 296.
  1. a conviction for an offence other than a serious offence;
  1. investigative information;
  1. domestic violence information;
  1. disciplinary information;
  1. adverse interstate WWC information;
  1. other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person.

(emphasis added)

  1. [10]
    On the basis of the matters addressed below, I am satisfied that:
    1. there is relevant information before the Tribunal pursuant to each of s 221(3)(a)(i) and (iii), s 221(3)(c), and s 221(3)(f);
    2. none of the charges of which the Applicant was convicted concerned a ‘serious offence’ as defined in Schedule 2 to the WWCA.
  2. [11]
    Consequently, this Application turns on whether or not I am satisfied that this is an exceptional case in which it would not be in the best interests of children for the Chief Executive to issue a working with children clearance to the person.

Is this an exceptional case?

  1. [12]
    The Respondent referred to a number of matters which, it was submitted, demonstrate that this is an exceptional case in which it would not be in the best interests of children to issue a working with children clearance to the Applicant.

Domestic violence incidents

  1. [13]
    The Respondent referred to a number of domestic violence incidents over a number of years. Some of the incidents fall within the definition of ‘domestic violence information’ which means, about a person, information about the history of domestic violence orders made, or police protection notices issued, against the person under the Domestic and Family Violence Protection Act 2012 (Qld). Others did not involve the making of domestic violence orders or the issuing of police protection notices, but I consider them to involve information about the Applicant that is reasonably believed to be relevant to deciding whether it would be in the best interests of children to issue a working with children clearance.
  2. [14]
    I will deal with them in reverse order.
  3. [15]
    On 20 July 2022, a Protection Order was issued against the Applicant, as respondent. The aggrieved person was the mother of the Applicant. By the Protection Order, it was ordered that, amongst other matters, that:
    1. the Applicant must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved;
    2. the Order also included a named person being the father of the Applicant;
    3. the Applicant is prohibited from remaining at, entering or attempting to enter, or approaching to within 100 metres of, the aggrieved’s usual place of residence (except with the written consent of the aggrieved).
  4. [16]
    The Protection Order continues in force to and including 20 July 2027, unless otherwise ordered.
  5. [17]
    The circumstances of the incident were that a neighbour called police after hearing the aggrieved scream out for someone to call the police; the aggrieved and the named person stated that the Applicant had been consuming alcohol since 12 noon and became aggressive and started yelling, swearing and stating he would leave the address with all his medication and his parents would never see him again (which caused his parents emotional distress). The police located the Applicant several hours later drinking at a nearby park, so intoxicated that he could barely walk. The police transported the Applicant to hospital for an emergency examination order.
  6. [18]
    On 25 February 2022, police were called to the aggrieved’s address after an informant was driving past and heard a scream coming from the address. The police spoke with the aggrieved and named person (the Applicant’s parents) both of whom stated that their son suffered from mental health issues and had mood swings.
  7. [19]
    On 25 December 2021, police attended at the aggrieved’s address in response to him being abusive towards the aggrieved. It was reported that the Applicant had been drinking since early in the morning and had consumed possibly 18 drinks.
  8. [20]
    Police also attended in response to yelling at the address on 14 June 2021, 1 May 2021, and 5 September 2020.
  9. [21]
    On 22 October 2018, the Applicant was named as the respondent to a temporary protection order issued against him which named the Applicant’s partner as the aggrieved and others as named persons. The allegations made against the Applicant included verbally abusing his partner; in one instance, threatening to drive the car they were both in into the back of a parked car; that the Applicant had hand cuffs, a baton and knives in his bedroom, and he would ‘quite often’ ‘pull out the baton & threaten to hit me, & same with the knife’; that the Applicant would come up behind his partner and choke her with two hands or his forearm but would let go before she passed out; that the Applicant would push doors in the house causing holes in the wall and would say that his partner was lucky that it was not her head. Under cross-examination, the Applicant denied that any of this  occurred, and that it was all fabricated. I note that the Application for a protection order was withdrawn on 19 November 2018 and that, at the hearing of this matter, the Applicant was supported by the aggrieved who is his current partner.
  10. [22]
    On 24 September 2013, a Protection Order was issued naming the Applicant as respondent and it appears that the aggrieved person was the Applicant’s father and that the Applicant’s mother was the named person. The Order provided that the Applicant be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved, and that the Applicant be of good behaviour towards the named person and not commit associated domestic violence against the named person. The order was in force to and including 23 September 2014 subject to further order.
  11. [23]
    On 6 March 2013, a Protection Order was issued which named the Applicant as respondent. By that Order, it was ordered that the Applicant be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved; that the Applicant was to vacate the premises at which the aggrieved was residing within two days of service of the Order; and that the Applicant was prohibited from remaining at, entering or attempting to enter, or approaching to within 100 metres of the aggrieved’s usual place of residence. The order was to continue in force to and including 5 March 2015 subject to further order. On 14 May 2014, the Protection Order was varied by a Protection Order Varied Order, to add a further order that the Applicant was not to contact, try to contact [or] to ask someone else to contact the aggrieved directly or indirectly by telephone or any other means of communication, except through a solicitor or except when attending Court/Legal Aid conferencing or other counselling and mediation.
  12. [24]
    The incident the subject of the original order involved a domestic disturbance between the Applicant and his previous partner. The police reported that they located the Applicant at the residence with blood over his face from superficial lacerations and also observed blood oozing from a wound on the Applicant’s left calf. Blood was observed on the kitchen floor and details soaked in blood were in the kitchen. On a wall in the lounge room was a mirror that had been smashed with only the frame remaining and in the kitchen the police observed a number of knives and a smashed liquor bottle. The aggrieved stated that there was a heated verbal argument between them which escalated into a physical fight with punching and pushing. The aggrieved alleged that the Applicant had cut his own forehead with a steak knife and after the altercation left the property and came back and threatened to commit suicide and again cut the backs of both of his hands. It appears that the aggrieved stated that she had taken the knife from the Applicant and used it to stab him in the back of his left calf. The police report that the Applicant verified the aggrieved’s version of events, only adding that he had punched a mirror causing it to smash and also smashed a bourbon bottle in the kitchen.

Management of mental health

  1. [25]
    The Applicant provided a report from a Consultant Psychiatrist dated 6 June 2023. The report stated the following:
    1. the Applicant had been a patient since 17 May 2021 and attended regular appointments and assessments and was provided with pharmacological and nonpharmacological treatment;
    2. the most recent appointment was on 18 April 2023;
    3. the Applicant presented with anxiety and there were also diagnoses of Autism Spectrum Disorder (Aspergers) with Attention Deficit Hyperactivity Disorder;
    4. the Applicant had expressed a very difficult childhood with multiple invalidating experiences and had learned that one way to communicate was through violence;
    5. that the Applicant was determined to improve his life despite his dysfunctional upbringing and the Applicant was always compliant with treatment and attended therapy regularly, despite the considerable financial constraints (the practice did not provide bulk billing);
    6. the Applicant initially presented with anger issues as a result of the trauma experienced during his childhood whilst growing up;
    7. at clinical assessment and mental state examination over the past several years, the Applicant had exhibited excellent progress;
    8. that the lack of a Blue Card severely affected the Applicant’s ability to work, to improve his circumstances, and to move on with his life;
    9. the Applicant feels he is not working to the best of his ability as he is unable to undertake jobs which require a Blue Card and he feels helpless that although he has been taking all recommended steps in treatment for his mental health over the years is still unable to obtain a Blue Card;
    10. the Applicant feels anxious and worried about this predicament and, in the Doctor’s opinion, the provision of a Blue Card would greatly improve his mental health and self-esteem;
    11. the Consultant Psychiatrist’s opinion was that the Applicant was managing his condition well, and is a recommended candidate for a Blue Card.
  2. [26]
    The Applicant did not make the Consultant Psychiatrist available for cross examination at the hearing. Consequently, the Respondent was denied an opportunity to clarify aspects of the report.
  3. [27]
    The Applicant’s regular attendance at his appointments and compliance with recommended treatment is a positive factor in favour of the Applicant. The Applicant has plainly devoted considerable effort to addressing and improving the state of his mental health.
  4. [28]
    However, I have concerns with the observations of the Consultant Psychiatrist that the Applicant has exhibited ‘excellent progress’ and was ‘was managing his condition well’. It is difficult to reconcile these observations with the fact that there were four incidents that occurred during the course of the Applicant’s treatment, particularly having regard to the significance of the incident on 14 July 2022. In the absence of evidence from the Consultant Psychiatrist, the only logical inference is that the Applicant had not informed the Psychiatrist of those incidents.
  5. [29]
    Further, in a submission to the Tribunal filed on 23 November 2023, the Applicant referred to his treatment with the Consultant Psychiatrist, stating that this treatment had been crucial in managing his ADHD and maintaining his mental well-being, with no instances of substance abuse or alcohol misuse. The statement in relation to there being no instance of alcohol misuse was plainly inaccurate, particularly having regard to the circumstances of the incidents on 25 December 2021 and 14 July 2022 where heavy drinking was involved. I also consider that there was a lack of candour in omitting any reference to the incidents that occurred whilst being treated by the Consultant Psychiatrist, which were material to the state of the Applicant’s mental health.
  6. [30]
    In cross-examination, the Applicant accepted that his mental health had not been well managed up until July 2022, but stated that it had been well managed since the last incident in July 2022.

Police information

  1. [31]
    The National Police Check Results Report in relation to the Applicant revealed a number of offences committed by the Applicant between 2001 and 2013, some resulting in a conviction and others resulting in no conviction being recorded. The details of the offences include the following:
    1. wilful damage committed on 26 May 2001: no conviction recorded, probation 18 months, compensation $260;
    2. possession of a knife in a public place on 25 April 2003: no conviction recorded, fine of $150.00;
    3. unauthorised dealing with shop goods (maximum $150.00) on 13 November 2003: no conviction recorded, fine of $200.00;
    4. unauthorised dealing with shop goods (maximum $150.00) on 29 November 2003: no conviction recorded, fine of $100.00;
    5. contravention of a direction or requirement on 5 August 2004: convicted and fined $300.00;
    6. breach of order on 18 February 2005: convicted and fined $420.00;
    7. unlawful possession of weapons Category A, B or M on 3 December 2005: no conviction recorded, fined $350.00;
    8. breach of order on 8 May 2006: convicted and placed on probation for 12 months;
    9. using a carriage service to menace, harass or cause offence on 13 July 2013 and 19 July 2013 respectively: on all charges, no conviction recorded, recognisance of $400.00 with a good behaviour period of 12 months.
  2. [32]
    Given the age and nature of the offences involved, I do not consider that this information is particularly material to the question of whether this is an exceptional case save that it tends to indicate a disregard of the law on the part of the Applicant.

Conclusion

  1. [33]
    Having regard to the totality of the relevant information, I am satisfied that this is an exceptional case (within the meaning of s 221(2) of the WWCA) in which it would not be in the best interests of children for the Applicant to be issued with a working with children clearance.
  2. [34]
    Whilst the Applicant has, commendably, taken positive steps to address his mental health and anger issues, and has some strategies in place for avoiding a repeat of previous behaviour, and noting that he is presently in a stable relationship, I consider that the following matters demonstrate that this case is an exceptional one, having regard to the principle that the welfare and best interests of a child are paramount:
    1. the extent of the domestic violence incidents (even accepting the Applicant’s denial of the events in relation to the 2018 incident);
    2. the nature and recency of the domestic violence incident in July 2022, involving significant intoxication, aggression, and a verbal threat that the Applicant would harm himself;
    3. the fact that this incident occurred despite the Applicant being engaged in a course of treatment by the Consultant Psychiatrist;
    4. the matters in subparagraphs (b) and (c) suggest that the Applicant’s fraught behaviour and issues with alcohol consumption have not sufficiently stabilised so as to provide confidence that the conduct will not re-occur;
    5. that the positive observations of the Consultant Psychiatrist are undermined by the absence of any reference to the incidents of 25 December 2021 and, more particularly, 25 February 2022 (as addressed above);
    6. on my appraisal of the Applicant’s evidence, the Applicant demonstrated a lack of insight into why the history of domestic violence incidents was relevant to the decision under review;
    7. the lack of candour in the Applicant’s submission to the Tribunal filed on 23 November 2023 as addressed above.

Consideration of the Human Rights Act 2019 (Qld)

  1. [35]
    The Respondent is exercising a function of a public nature for the purposes of the Human Rights Act 2019 (Qld) (‘the HRA’).[9] I am obliged to give proper consideration to a human right relevant to the decision, and not to act or make a decision in a way that is incompatible with human rights.[10]
  2. [36]
    Giving proper consideration to a human right in making a decision includes, but is not limited to, identifying the human rights that may be affected by the decision, and considering whether the decision would be compatible with human rights. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.[11] In deciding whether a limit on a human right is reasonable and justifiable, the factors mentioned in s 13(2) of the HRA may be relevant.
  3. [37]
    In my view, the human rights of the Applicant that may be affected by the decision are that:
    1. every person is equal before the law;[12]
    2. every person has the right to freedom of association with others.[13]
  4. [38]
    I have considered the factors mentioned in s 13(2) of the HRA and I conclude that a finding of an exceptional case, and the consequential affectation of the human rights set out in paragraph [37] above is reasonable and justifiable. The purpose of the limitation imposed by the WWCA is critical. The welfare and best interests of a child are paramount. I consider that the importance of the protection of children outweighs the limitation on the Applicant’s human rights. Conditions may not be imposed on a working with children clearance. In my view, there is no less restrictive and reasonably available way to achieve the object and principles of the WWCA.

Non-publication order

  1. [39]
    During the course of the proceeding, the Tribunal has made orders pursuant to s 66 of the QCAT Act, prohibiting the publication of information that might enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. It is the practice of the Tribunal to make a non-publication order in proceedings such as that now before it to avoid endangering the physical or mental health or safety of a person. In the circumstances of this case, I consider it appropriate to make a further non-publication order, pursuant to pursuant to s 66 of the QCAT, in the terms set out in paragraph [40] below.

Orders

  1. [40]
    For the reasons set out above, the correct and preferable decision is that:
  1. 1.
    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(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed;
  1. 2.
    pursuant to s 66(1) and s 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), subject to further order of the Tribunal, the publication of:
  1. the contents of a document or thing filed in or produced to the Tribunal;
  1. evidence given before the Tribunal;
  2. any decision or order made or reasons given by the Tribunal,

is prohibited to that extent that it could identify or lead to the identification of the Applicant, any family member of the Applicant, any child, or any non-party to the proceeding.

Footnotes

[1]  The Review Application was filed within the required 28 day period: WWCA, s 353.

[2]  WWCA, s 354(1).

[3]  WWCA, s 353(a)(ii).

[4]  QCAT Act, s 20(1).

[5]  QCAT Act, s 20(2). See also Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34, [7].

[6] CTA v Queensland Police Service [2018] QCAT 440, [11].

[7]  WWCA, s 360. See also s 6.

[8]  WWCA, s 358.

[9]  HRA, s 10.

[10]  HRA, s 10.

[11]  HRA, s 13(1).

[12]  HRA, s 15(3).

[13]  HRA, s 22(2).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2024] QCAT 414

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    19 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
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
1 citation
Jump To
Cite 1 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
1 citation
Jump To
Cite 1 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
1 citation
Jump To
Cite 1 - [2004] QCA 492
CTA v Queensland Police Service [2018] QCAT 440
1 citation
Jump To
Cite 1 - [2018] QCAT 440
Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34
1 citation
Jump To
Cite 1 - [2013] QCAT 34
FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210
1 citation
Jump To
Cite 1 - [2016] QCAT 210
Re TAA (2006) QCST 11
1 citation
Jump To
Cite 1 - (2006) QCST 11

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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