RSH v Director-General, Department of Justice and Attorney-General
[2024] QCAT 416
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
- RSH v Director-General, Department of Justice and Attorney-General[2024] QCAT 416
- Add to List
RSH v Director-General, Department of Justice and Attorney-General[2024] QCAT 416
RSH v Director-General, Department of Justice and Attorney-General[2024] QCAT 416
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | RSH v Director-General, Department of Justice and Attorney-General [2024] QCAT 416 |
PARTIES: | RSH (applicant) v Director-General, Department of Justice and Attorney-General (respondent) |
APPLICATION NO/S: | CML246-23 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 25 September 2024 |
HEARING DATE: | 5 September 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Sammon |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – ‘blue card’ legislation – where applicant issued with negative notice – whether exceptional case Human Rights Act 2019 (Qld), s 13, s 26 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 156, s 176A, s 220, s 221, s 226, s 305, s 353, s 354, schedule 1, part 1, schedule 7 (the Dictionary to the Act) 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 W v The Commission for Children and Young People and Child Guardian [2011] QCAT 431 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Ms C Davis, Department of Justice and Attorney-General |
REASONS FOR DECISION
Background
- [1]The Applicant, RSH, applies to the Tribunal for review of a decision made by the Respondent Department on 27 June 2023 to refuse to issue him a ‘blue card’ that he requires to work with children under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Blue Card Act’).
- [2]In more detail, RSH applied for a ‘working with children clearance’ (blue card) under the Blue Card Act on 26th October 2022. On 27 June 2023 the Department issued him with a ‘negative notice’ under s 220 of the Blue Card Act, which has the effect of refusal to issue RSH with a blue card.
- [3]The Department's reason for refusal, accompanying the decision made on 27 June 2023, was because of a single incident which occurred on 16 January 2020 involving RSH and a 31-year-old male client with high needs. RSH was employed at the time as an adult support worker with the 31-year-old male as his client. The Department summarised the incident as being that RSH grabbed the client by the arms before forcibly removing him from one area of the house concerned to another. RSH was not charged or convicted of any offence arising out of the incident.
The legislative framework
- [4]The object of the Blue Card Act, stated in s 5, is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme relevantly requiring:
- the screening of persons employed in particular employment or carrying on particular businesses.
- [5]The reason why RSH requires a blue card is because s 176A of the Blue Card Act provides that it is an offence for a person to start or continue in ‘regulated employment’ unless the person holds a ‘working with children clearance’[1] (blue card). The expression ‘regulated employment’ is defined in s 156(1) of the Act to be a type that is stated to be regulated employment in schedule 1, part 1 of the Act. That part of schedule 1 lists a variety of types of regulated employment that involves working with children, for example, as an educator or carer in an education and care service,[2] or providing child care.[3]
- [6]Section 221(1) of the Act contains a ‘default position’, in that the chief executive who administers the Blue Card Act must issue a working with children clearance to the applicant if the chief executive is not aware of any ‘relevant information’ about the person or is not required to issue a negative notice to the person under s 221(2).
- [7]Section 221(2) is the key provision for the purposes of this application and is as follows:
- The chief executive must issue a negative notice to the person if the chief executive—
- is aware of relevant information about the person; and
- 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.
(added emphasis)
- [8]I make four points of analysis about the terms underlined in that provision.
- [9]First, there is an obligation on the chief executive (connoted by the word ‘must’) to issue a negative notice if the matters contained in paragraphs (a) and (b) are satisfied.
- [10]Second, the obligation to issue a negative notice is triggered if both of the matters contained in paragraphs (a) and (b) are satisfied, because of the word ‘and’ between each paragraph.
- [11]Third, the expression ‘relevant information’ is defined by s 221(3). It includes information about criminal charges and convictions, not relevant for the purpose of this proceeding but also includes ‘investigative information’. That term is defined in s 305 of the Act, in summary to mean the outcome of an investigation by the police service about an alleged offence, including where a decision was not made to charge the person because the complainant’s parent or guardian decided that, in the interests of the complainant, a charge should not proceed.
- [12]That was the case concerning the incident which took place on 16 January 2020. In fact, and this is uncontested, RSH himself notified his employer about the incident. The police were called and interviewed RSH. The client’s parents did not want RSH charged with any offence.
- [13]Fourth, although the key term in s 220(2) is that the chief executive must be satisfied that the case is an ‘exceptional case’ in which it would not be in the best interests of children to issue a blue card to the applicant, that expression is not defined in the Act as to its meaning, but only by reference to location of that term in provisions of the Act.[4]
- [14]The key question for me to decide is whether, under s 220(2), this case and its circumstances are such that it is an ‘exceptional case’ in which it would not be in the best interests of children to issue a blue card to RSH.
- [15]Section 354 of the Blue Card Act confers on RSH an entitlement to apply to the Tribunal for a review of a ‘chapter 8 reviewable decision’. That term is defined in s 353, relevantly to include a decision of the chief executive whether or not there is an exceptional case if, because of the decision, the chief executive decided to issue the person with a negative notice.[5]
- [16]Those provisions enliven the review jurisdiction of the Tribunal, contained in chapter 2, part 1, division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). Section 20, in division 3, states that the purpose of a reviewable decision is to produce ‘the correct and preferable decision’. The functions of the Tribunal for a review of a reviewable decision under s 24 include to confirm or amend the decision concerned, or to set aside the decision and substitute its own decision.
- [17]Written submissions on behalf of the Department dated 26 July 2024 helpfully set out the principles that apply in a review of this kind, based on previous decisions of the Tribunal, and I have had regard to those principles. Of particular relevance to this case are the following principles:
- neither party bears the onus of proving whether an ‘exceptional case’ exists;[6]
- regard is to be given to the promotion and protection of the rights, interests, and wellbeing of ‘all children’ in Queensland, rather than ‘just one’ or some children;[7]
- The observation of the QCAT Appeal Tribunal in CMH that:[8]
... the ultimate question of what is in the best interests of children does not lend itself to exact proof [and instead] involves consideration of how children might be affected and the degree of speculation as to what might happen in the future and of future risks to children…
Review of the evidence on the incident
- [18]This matter proceeded to a hearing on 5 September 2024. RSH was self-represented, whilst the Department was legally represented by Ms Davis.
- [19]At the outset of the hearing, Ms Davis asked that I make an order to de-identify RSH as the evidence that was expected to unfold in the hearing would include the identity of RSH’s child, aged about three years. RSH consented to making an order of that kind. The Tribunal has the power under s 66(1) of the QCAT Act to make a non-publication order not to publish information that may enable a person who has appeared before the Tribunal, or a person who is affected by a proceeding, to be identified.
- [20]The Tribunal may make a non-publication order in the circumstances described in s 66(2), including, in paragraph (d), to avoid the publication of information contrary to the public interest. Since my reasons for this decision would, by identifying RSH, identify his child, in the context of this case, I am satisfied that the public interest would best be served by non-publication of RSH’s details. Similarly, I will not identify the client with whom RSH was working, who is the subject of the incident which led to the Department’s decision to issue a negative notice.
- [21]RSH gave oral evidence, and was cross-examined by Ms Davis.
- [22]It was not contested by the Department that RSH self-reported the incident to his employer at the time, a provider of accommodation and support services to intellectually disabled adults. Indeed, RSH reported the incident to his employer that same day.
- [23]Evidence given by RSH at the hearing, and again non-contested by the Department, was that the client the subject of the incident was largely non-verbal. If RSH had not self-reported the incident, it is likely that the incident would not have been identified.
- [24]As to the incident itself, RSH gave evidence at the hearing, which again was not contested by the Department, that his client was a large man, weighing between 110-130 kilograms. The client became upset about the food RSH was offering him and ‘came at’ RSH with his head and belly so as to cause RSH to apprehend that the client would strike him.
- [25]RSH then restrained the wrists of his client with RSH’s hands and pushed him towards his room. During the course of doing this, the client fell and hit a wall. When giving evidence at the Tribunal, RSH said that the client emerged from the fall against the wall with a cut on his nose, which bled slightly. RSH gave evidence that the cut must have occurred at the point in time when the client was struggling with him, and it may have been a fingernail of either of them that caused the cut.
- [26]RSH’s employer and the service provider to the client called the police to the location where the support service was provided. Body-worn camera footage from the police who attended was exhibit 5 in the hearing. I have viewed the camera footage and the version by RSH is consistent with the evidence he gave at the hearing. The footage also shows the client in the house where the service was provided and I agree that client is a large adult male weighing between 100-130 kilograms.
- [27]The footage shows RSH and his manager being separately interviewed by the police. Both give a consistent version that the client was new to the service and was having some difficulty fitting in, demonstrating some behaviours that he was upset and agitated at the new situation the client found himself in.
- [28]In my opinion, what emerges from the police interviews, the incident report made by RSH dated 16 January 2020, and his response to a ‘show cause’ letter dated 16 January 2020 which I discuss below, is that the service provider did not fully understand the non-verbal cues the client demonstrates to describe his mood. If it did, the service provider had not fully communicated the non-verbal cues to RSH who had only worked with the client a few times before the date of the incident. In any case, the manager explains that the client’s non-verbal movement towards RSH were a signal that the client wanted to be left alone. I am satisfied that the meaning of the non-verbal movement was not adequately explained to RSH.
- [29]The same day of the incident, the service provider and RSH’s employer gave RSH a ‘show cause notice’ why RSH should not be the subject of disciplinary action by the employer.
- [30]RSH provided a written response to his employer, again on the same day as the incident. That written response is in evidence before the Tribunal as part of exhibit 6.
- [31]RSH was candid in his written response. He admitted that he did:
… forcibly relocate [the client] to his room after coming to strike me again that morning. I held his wrists due to wanting to strike me, pushing and grappling him towards his bedroom. I do not deny using force outside of my duty of care but reject the allegation I assaulted to cause harm. My conduct was unacceptable and is not appropriate self-defence when I should have let go and moved away. The police were called as per NDIS allegations of client abuse, who informed [the client’s] parents and as of this time did not want to peruse [sic] assault charges.
…
This event came after several preceding issues had been raised and occurred with [the client] as a new participant to [the service] and supported living. This includes a limited summary of [the client’s] behaviour and methods of communicating with him supplied to staff, poor inter-staff communication, [the client’s] refusal to participate in most activities, destruction of clothing and food items and striking with his hands and feet at staff to show his frustration. I do not highlight these problems to justify my actions but to show a bigger picture where my personal stress grew from supporting [the client].
- [32]In this way, RSH demonstrated appropriate recognition of his responsibility for the incident, and did not seek to explain his response to the actions of the client in lashing out at RSH as being justified by the client's actions. He acknowledged his responsibility and remorse to the show cause letter in the following extract:
I concede working with [the service] is no longer an option and I understand my conduct is grounds for termination and NDIS investigation that may lead to Yellow Card withdrawal. If [the service] management has no other choice than to terminate my employment I will resign today as a support worker. I apologise to all for my conduct and await your response.
- [33]The service responded to the letter by RSH by terminating his employment immediately, in a letter to RSH dated the next day, 17 January 2020.
The hearing of the matter
Evidence of RSH
- [34]At the hearing of the matter, RSH gave evidence consistent with the version he had given on the day of the incident described above. He did not seek to justify or excuse his contact in the incident and was remorseful about it.
- [35]In his evidence, he explained work he had done since the incident with service providers for disadvantaged or disabled people. He said he had experienced aggressive behaviours from clients, but had learned from the earlier experience, by reacting in a different way, if necessary, by withdrawing from the situation.
- [36]RSH gave evidence about what he had done since the incident concerned to avoid repetition of anything like it. He gave evidence that he has undertaken courses through Lifeline on coping strategies and finding better ways to manage stress. He has seen a psychologist regularly and goes to meditation.
- [37]Included in exhibit 2 before the Tribunal, which is the Application made by RSH to the Tribunal, is a reference from a community welfare organisation that works with adults with intellectual disabilities. That reference, dated 19 July 2003 describes the work RSH has done with a particular client who the service describes frequently exhibits challenging behaviours, including aggression and threats of physical violence. The reference goes on to say that RSH has engaged in regular support and supervision of the client along with the rest of the client’s support team and has followed the client’s Positive Behaviour Support Plan as directed. This has included RSH (and other workers) removing themselves from the interactions with the person when they become aggressive and are unable to regulate themselves.
- [38]Since then, RSH has worked with a community organisation that finds work for the unemployed and helps its clients in preparing for work.
- [39]RSH gave evidence about work he had done with children, as a provisional teacher in-training with Education Queensland, prior to working in disability support. To do that he had obtained a Diploma of Education after completing a degree.
- [40]I was impressed with RSH when he gave his evidence. He struck me as a man who acknowledges his mistake, and has made serious attempts to learn how to avoid repetition of the same mistake. He demonstrated commitment to working with the disadvantaged as much as he could after the incident. In short, I found him to be a thoroughly decent man who made an isolated mistake whilst under stress, in a situation he did not fully understand at the time.
Evidence of CLB
- [41]RSH also called evidence at the hearing from CLB, a clinical counsellor who works in domestic and family violence, and who is currently employed by a Queensland university. She gave evidence that she has also worked with children referred from the Department of Child Safety. She gave evidence that she understands the Blue Card system.
- [42]CLB is the sister of RSH’s life partner, something that both RSH and CLB freely volunteered. The closeness of that relationship means that I cannot consider CLB as fully independent of RSH. However, that CLB, with professional qualifications as a counsellor with experience of working with children at risk of harm, was prepared to give evidence supporting the application by RSH, with knowledge of the purpose of the Blue Card legislation, means that I give weight to her evidence. However, the weight I give is less than to someone with the same professional qualifications, who is independent of the Applicant to the Tribunal.
- [43]Exhibit 1 in the Tribunal was a ‘Reference for blue card applicant’ by CLB which is a form of that description prepared by the Queensland Government (Blue Card Services) dated 12 January 2023. That essentially became the evidence in chief by CLB.
- [44]In exhibit 1, CLB describes how she has witnessed RSH with her then 18-month-old son. She says that RSH:
… is a responsible, calm and attentive person around my son. He understands my son’s cues for hunger, boredom, tiredness and responds appropriately and always calmly.
[RSH] has a temperament suited to children and my son developed a bond with [RSH] very quickly.
I am aware of the incident on 20/01/20 - which was an isolated and contextualised event that in no way defines [RSH’s] character.
I believe that [RSH] continues to be an asset in working with children and people in the community.
- [45]When giving oral evidence to the Tribunal, CLB said that although she lives outside Brisbane, she stays at the home of RSH and his life partner and children, when she comes to Brisbane with her children.
- [46]When being cross-examined, CLB gave evidence of how she had witnessed RSH de-escalate circumstances with her children. She gave evidence how she had noticed that RSH had not become frustrated with children in the house, and how he took time out for the children. She has witnessed RSH being a very creative adult in the children’s lives.
- [47]I accept the evidence of SLB in support of the application made by RSH, albeit tempered by the fact that CLB is the sister of the life partner of RSH.
- [48]Given that the hearing involved additional oral evidence, I gave each of the parties the opportunity to provide further submissions on the evidence.
Submissions by the parties
- [49]RSH provided a submission dated 7 September 2024 which in effect summarised his earlier written and oral evidence. He again expressed his remorse for his response to the incident concerned and described the work he had done since the incident to improve his strategies of managing stress, and appropriate responses. He also mentioned his life partner as being a highly supportive companion and he treasured her knowledge from her years of social work.
- [50]He described how he had continued to work in disability support roles and has had challenging behaviour from supported individuals regularly where he managed his response in a much more positive way.
- [51]Finally, he said how his daughter is ‘an incredible person in my life and I continue to be a steadfast father and I highly enjoy looking after and engaging with my niece and many nephews.’ He stated a wish to work in educational entertainment of children. RSH had given oral evidence about these aspects in the hearing before the Tribunal.
- [52]In its written submission dated 9 September 2024, the Department stated that it acknowledged the:
- evidence of RSH at the hearing;
- supportive evidence of CLB;
- submissions made by RSH after the hearing; and
- ‘protective factors arising from the evidence and referred to in those submissions’.
Otherwise, the Department did not wish to provide further written submissions, and instead relied on its pre-hearing submissions dated and filed on 26 July 2024.
- [53]In the Department’s written submissions filed 26 July 2024, it maintains its decision to issue RSH with a negative notice. In the main, the Department's submissions focus on the event itself. The Department acknowledged points in favour of RSH, including that he self-reported the incident and ‘it is seemingly to his credit that he did so’.[9] The submissions also acknowledge that the client’s parents did not wish to make a complaint of assault to the police.[10]
- [54]However, the Department remains concerned that:
- RSH as a support worker was not allowed to physically handle the client without a pre-approved plan as authorised by the NDIS but did so anyway; and
- RSH ‘snapped’, ‘acted out of frustration’, ‘panicked’, and ‘behaved in a reactionary manner’.[11]
- [55]The Department also submitted that there was ‘limited probative evidence’ before the Tribunal specifically demonstrating that RSH has addressed the underlying causes or triggers for him acting the way that he did.[12]
- [56]However, RSH gave evidence before the Tribunal, and was cross-examined, on the steps he had taken since the incident concerned to address his reaction to what he perceived as aggressive contact by his client. Specifically, he gave evidence that he had been confronted with aggression, in particular from one client given to outbursts of aggression, and he had not reacted in the same way, but instead, withdrew from the situation. That is supported by the reference from the service provider contained in exhibit 2 which I have discussed above.
- [57]I am satisfied that the steps which RSH has taken, at his own initiative, to address the cause of his reaction to the incident concerned have equipped him with the skills not to react in the same way that he did in January 2020. Furthermore, I am satisfied that since the incident, RSH has gained experience in how to deal with an aggressive client which has equipped him with the skills not to respond to aggressive conduct from a client by a physical response.
- [58]The Department also submitted that RSH’s employer at the time of the incident in January 2020 chose to terminate his employment rather than issue a warning or take some other form of disciplinary action.[13]
- [59]The action that RSH’s employer took in response to the incident was clearly a matter for itself. The employer’s response cannot drive assessment of the circumstances as against the statutory test contained in s 221(2) of the Blue Card Act.
- [60]The Department’s submissions also considered the effect of the Human Rights Act 2019 (Qld) (‘the HR Act’) and in particular, the human rights of children contained in s 26(2) of that Act, that:
Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child's best interests, because of being a child.
- [61]The Department submits that a decision to issue RSH with a negative notice is compatible with human rights, because it is justified by the factors outlined in s 13 of the HR Act. The Department submits that this is so, because among other things, it will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children. Furthermore, the Department submitted that any limitation on the human rights of RSH is consistent with the object, purpose and paramount principle of the Blue Card Act.
Consideration
- [62]In my view, the factors which point in favour of setting aside the decision by the Department to issue a negative notice to RSH outweigh the factors in support of the decision to issue the negative notice being the correct and preferable decision.
- [63]The factors in favour of RSH are as follows:
- the incident was a single and isolated incident in a career of some years in duration by RSH in working with children, and disabled and disadvantaged people. That is, both before and in the four years after the event concerned;
- there was an element of self-defence in the response by RSH to some form of the client lunging at him, where the client had, with his size, the ability to do some harm to RSH. The element of self-defence may well have been enough for him to not being found guilty of any charge of assault, which in any event, did not arise;
- the actions of RSH in the incident appear to me to have been reactive and spontaneously instinctive, and certainly not premeditated;
- the physical actions of RSH in the incident were to restrain the client and forcibly move him to his room, rather than any striking of the client. That the client fell against a wall in the incident does not appear to me to have been intended by RSH, and only a consequence of the grapple between RSH and the client. The physical actions were at the very lower end of the spectrum of exertion of physical force on a client in the care of RSH;
- to his credit in terms of honesty and responsibility, RSH self-reported the incident to his employer, the care provider. Had he not done so, I find that it is unlikely that the service would otherwise have found out about the incident;
- RSH demonstrated acceptance of responsibility, and remorse for the incident, as soon as it occurred, and ever since;
- he does not seek to justify or excuse his conduct, either at the time of the incident, or since;
- since the incident, RSH has undertaken courses and other measures in his life to avoid repetition of a reaction to an incident that is the subject of this application;
- RSH has an admirable commitment to working with disadvantaged people, both before the incident, and since, to the extent that he could. Having a blue card is not simply a ticket to him getting a job because he cannot get other work;
- other people speak highly of his character, and demeanour around children, including the reference and evidence by a counsellor experienced in working with children, albeit that she is the sister to RSH’s life partner.
- [64]My findings on these factors are supported by my observation of RSH when he gave evidence before me, and was cross-examined.
- [65]The factor pointing against RSH is that the incident occurred with his work with an intellectually disabled person in his care. However, I am satisfied by the evidence, and my impression of RSH when he gave evidence that he has profoundly learned from the incident, and will do all in his power to avoid such an incident occurring again.
- [66]I reach the conclusion that any children who will be in his care will not come to harm if a blue card is issued to him.
- [67]Turning to the Department’s submissions on the HR Act, I acknowledge the relevance of the human rights of children under s 26(2) of that Act. However, applying the relevance of that factor to the decision that I must make under s 221(2) of the Blue Card Act, in my opinion, the human rights of children to be protected would not, in all of the circumstances of this case, be limited by a blue card being issued to RSH.
- [68]In all the circumstances, I find that RSH’s case is not an exceptional case in which it would not be in the best interests of children for him to be issued with a blue card.
- [69]The correct and preferable decision is to set aside the decision made by the Department, and instead make an order that RSH be issued with a positive notice under the Blue Card Act.
Footnotes
[1]Defined in s 220(2) of the Blue Card Act to be the written notice that the chief executive issues that states the application by a person making a working with children check (general) application is approved.
[2]Section 4(1).
[3]Section 4A(1).
[4]See the definition of that term in the Dictionary (schedule 7) of the Act.
[5]Section 353(a)(i).
[6]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 at paragraph [19].
[7]W v The Commission for Children and Young People and Child Guardian [2011] QCAT 431 at paragraphs [73] and [110].
[8]Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6 at paragraph [16].
[9]Paragraph 14(b) and (c).
[10]Paragraph 14(d).
[11]These are RSH’s own expressions, taken from the sources identified in paragraph 15(g) of the Department’s written submissions.
[12]Paragraph 16.
[13]Paragraph 16(c).