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

This matter involved an application for review of a decision by the Director-General, Department of Justice and Attorney-General (the respondent) that the applicant’s case was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act). The applicant applied for a working with children clearance, referred to as a blue card, under the WWC Act so that he could volunteer as a chaplain in Queensland. The applicant has ten convictions, all, in effect, which stem from his strained relationship at the time with his ex-wife. Most of the offences relate to harassment or other contraventions of domestic violence orders committed between 2015 and 2017 against his ex-wife. One offence of common assault occurred when the applicant visited his ex-wife’s employment with flowers and was asked by his ex-wife’s employer to leave. The applicant then struck the employer to the right shoulder with his right palm, threw the flowers at him and then punched him once to the face. As none of the offences are categorised as “serious offences”, the default position is that a blue card must be issued unless the chief executive is satisfied the applicant’s case is an “exceptional case” in which it would not be in the best interests of children for the applicant to be issued with a blue card. The chief executive was satisfied the case was exceptional within the meaning of the WWC Act and, on 19 July 2019, issued the applicant with a negative notice. The applicant is not a disqualified person and applied for review on 7 August 2019, within the statutory timeframe. The applicant submits that he will be unable to undertake regulated employment involving children and that his ‘right to work’ as recognised by Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) is relevant to this decision, notwithstanding it is not expressly listed as a human right protected by the Human Rights Act 2019 (Qld) (HRA). The respondent submits that this is not relevant in determining whether the applicant’s case is an exceptional case, given the ‘paramount principle’ which means such consideration “must ‘yield’ to the consideration of whether the applicant having a blue card is consistent with the welfare and best interests of children. The respondent submits that “any hardship or prejudice suffered by the applicant as a result of not obtaining a blue card is of no relevance”. The Tribunal found that although the applicant’s human rights, which includes, relevantly, the right to work, may be a factor to take into account, the paramount principle, namely, the welfare and best interests of children, means that their interests, as opposed to the applicant’s will take priority where those interests conflict. The Tribunal found that the applicant’s history of domestic violence and controlling and coercive behaviour was relevant to the decision, however, the offences occurred after the applicant’s ex-wife left the family home and that no children were directly affected. The Tribunal was also satisfied that the applicant genuinely believed he has undergone an emotional and spiritual transformation. The evidence was consistent with the view that the applicant had turned his back on his past, understood and accepted he was wrong and was now fully committed to a life based on helping others. The Tribunal found that the applicant’s case was not an exceptional case within the meaning of s 221 of the WWC Act and set aside the decision of the Director-General, Department of Justice and Attorney-General made on 19 July 2019 and substituted it with the decision that there is no exceptional case within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Tribunal also made an order prohibiting the publication of the names of the applicant, any witnesses appearing for the applicant or any relevant child.