BJM v Director-General, Department of Justice and Attorney-General - [2022] QCAT 372

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

BJM v Director-General, Department of Justice and Attorney-General [2022] QCAT 372

PARTIES: BJM

(applicant)

v

Director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML402-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

26 October 2022

HEARING DATE:

4 March 2022

HEARD AT:

Cairns

DECISION OF:

Member Taylor

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(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set-aside and replaced with the Tribunal’s decision that there is no exceptional case.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – applicant seeks a review of decision to issue a negative notice following charges of ‘sexual assault’ – where the applicant denies the charges – where the Crown entered a nolle proseque on all charges – whether an exceptional case exists.

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 354

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66

Human Rights Act 2019 (Qld), s 13, s 26, s 48

Chief Executive Officer, Department for Child Protection v Grinrod (No 2) (2008) WASCA 28
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Re TAA [2006] QCST 11
TNC v Chief Executive, Public Safety Business Agency [2015] QCAT 489
TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
Volkers v Commission for Young Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES & REPRESENTATION:

Applicant:

B. Bilic instructed by O’Reilly Stevens Lawyers

Respondent:

C. Davis – Legal Officer for Blue Card Services

REASONS FOR DECISION

On 11 October 2021, this Tribunal gave a direction pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCATAct) prohibiting the publication of material in this proceeding to the extent that it could identify or lead to the identification of inter-alia the applicant, any family member of the applicant, any child, or any non-party to the proceeding. Accordingly, these reasons and the Orders given herein are published in a de-identified format.

Background

On 13 November 2018 the applicant was issued with a working with children clearance (Blue Card) under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA).
On 2 April 2019, the applicant was charged with three counts of sexual assault said to have occurred on 31 March 2019 (the Charges). The alleged victim of the assaults is said to have been a young…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BJM v Director-General, Department of Justice and Attorney-General [2022] QCAT 372
Case: [2022] QCAT 372
Decision Date

CaseChat Overview and Summary

The case of BJM v Director-General, Department of Justice and Attorney-General involved the applicant, BJM, who had applied for a Blue Card but was subsequently denied by the Director Blue Card Services (Screening Services). The application was made to the Tribunal for a review of the decision to deny the Blue Card and issue a negative notice. The hearing took place on 4 March 2022, followed by the submission of written arguments by the parties. The Tribunal was required to determine whether the decision to deny the Blue Card was appropriate under the Working with Children Act 2009 (WWCA).

The central legal issue in this case was whether the decision to deny the Blue Card was justified under the WWCA, specifically section 221(2). The Tribunal had to consider whether the applicant’s case was exceptional such that it would not be in the best interests of children for a negative notice not to issue. This required an analysis of the charges laid against the applicant, which had not resulted in a conviction, and the alleged presence of child exploitation material. The vagueness and uncertainty surrounding these allegations also needed to be assessed to determine if they were appropriately considered in the decision-making process.

In delivering the decision, the Tribunal concluded that the decision to deny the Blue Card was not appropriate as it did not constitute an exceptional case under the WWCA. The allegations against the applicant were not established facts, and the alleged presence of child exploitation material was deemed too vague and uncertain to be a proper basis for the decision. Consequently, the Tribunal set aside the decision to issue a negative notice and ordered that a working with children clearance be issued to the applicant. The Tribunal found that the decision-maker was satisfied with the relevant information, but the applicant contested this, leading to the Tribunal’s review and subsequent decision to replace the negative notice with a clearance.

The final orders of the Tribunal mandated that the decision to deny the Blue Card be set aside and replaced with a decision to issue a working with children clearance to the applicant. This outcome was reached after careful consideration of the material presented and the relevant statutory provisions, ultimately ensuring that the correct and preferable decision was made in accordance with the WWCA.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 10 September 2021 the respondent, via its Director Blue Card Services (Screening Services), made the decision to deny the applicant another Blue Card and to issue a negative notice (the Decision).[8] [8]Ibid – BCS 40. By application filed 2 October 2020, the applicant applied to this Tribunal for a review of the Decision. The hearing of that application occurred on 4 March 2022 occupying an entire day of hearing time. It was followed by the provision of written submissions by the parties, namely the applicant’s submissions in closing of 15 April 2022 (ASC), the respondent’s submissions in closing of 9 June 2022 (RSC), and the applicant’s submissions in reply of 6 July 2022 (ASR). Regrettably, due to a number of issues arising unexpectedly before me since mid to late July of this year, my consideration of those submissions together with the evidence received at the hearing was delayed such that it has taken until now to reach a decision and provide these reasons in this proceeding. For the reasons I give later herein, I am unable to find that the applicant’s case is an exceptional one in which it would not be in the best interests of children in the manner contemplated by s221(2) of the WWCA such that a negative notice must issue. Accordingly, the Decision must be set-aside and replaced with the Tribunal’s decision that there is no exceptional case. The net effect of such is that pursuant to s221(1) of the WWCA, the chief executive must issue a working with children clearance to the applicant. This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, and more particularly s354 therein, read together with the QCAT Act Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I must exercise this jurisdiction in accordance with both those pieces of legislation, and in doing so I have all the functions of the decision-maker in terms of the decision to be made.[9] [9]QCAT Act s 19. The purpose of this review is to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits.[10] It is not necessary for me to consider whether the decision-maker made an error in making the Decision. At the conclusion of the review, I may confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter for reconsideration to the decision-maker with directions I consider to be appropriate.[11][10]QCAT Act s 20.[11]QCAT Act s 24. Given that charges were laid but did not proceed to a conviction it remains unresolved at law as to whether the Alleged Offences actually occurred. Similarly, on the material that is before this Tribunal, the Alleged Presence of Child Exploitation Material remains an issue that is not proven. Thus, it is all allegations and not established fact. Notwithstanding that, as I read the material before me, in my opinion the Decision was one open to be made under the WWCA s221 providing that, upon consideration of the relevant information, namely the Charges and the Google Searches,[12] the decision-maker was satisfied that it was appropriate to issue a negative notice. It is quite obvious that the decision-maker was so satisfied. But the applicant does not agree. Accordingly he applied to this Tribunal to have the Decision reviewed and the issue decided on the merits. [12]Such fall within the ambit of WWCA s221(1)(b)(iv) and (d). In my opinion the Alleged Presence of Child Exploitation Material was so vague and uncertain it should not have been something properly considered in assessing the application for a Blue Card.

Ratio Decidendi

Legal Principle Established

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CITATION:	BJM v Director-General, Department of Justice and Attorney-General [2022] QCAT 372
PARTIES:	BJM
(applicant)
v
Director-general, department of justice and attorney-general
(respondent)
APPLICATION NO/S:	CML402-20
MATTER TYPE:	Childrens matters
DELIVERED ON:	26 October 2022
HEARING DATE:	4 March 2022
HEARD AT:	Cairns
DECISION OF:	Member Taylor
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(2) of the *Working with Children (Risk Management and Screening) Act* 2000 (Qld) is set-aside and replaced with the Tribunal’s decision that there is no exceptional case.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – applicant seeks a review of decision to issue a negative notice following charges of ‘sexual assault’ – where the applicant denies the charges – where the Crown entered a nolle proseque on all charges – whether an exceptional case exists. Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 354 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66 Human Rights Act 2019 (Qld), s 13, s 26, s 48 Chief Executive Officer, Department for Child Protection v Grinrod (No 2) (2008) WASCA 28 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Re TAA [2006] QCST 11 TNC v Chief Executive, Public Safety Business Agency [2015] QCAT 489 TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121 Volkers v Commission for Young Children and Young People and Child Guardian [2010] QCAT 243
APPEARANCES & REPRESENTATION:
Applicant:	B. Bilic instructed by O’Reilly Stevens Lawyers
Respondent:	C. Davis – Legal Officer for Blue Card Services