Frescon v Director-General, Department of Justice and Attorney-General - [2018] QCAT 383

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Frescon v Director-General, Department of Justice and Attorney-General [2018] QCAT 383

PARTIES:

ROBERT CHARLES FRESCON
(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO:

CML023-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

16 November 2018

HEARING DATE:

8 November 2018

HEARD AT:

Brisbane

DECISION OF:

Member Sheean

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 set aside and replaced with the Tribunal’s decision that there is no exceptional case.

2. The decision of the Tribunal is to be delivered to the parties by email.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where convicted of offences other than a ‘serious offence – whether the Applicant’s case is an ‘exceptional case’

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360, Schedule 2

Briginshaw v Briginshaw (1938) 60 CLR 336
Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Gindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289
Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56
Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1
Re TAA [2006] QCST 11
The Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492

APPEARANCES & REPRESENTATION:

Applicant:

S Wills, Solicitor, Aboriginal and Torres Strait Islander Legal Service

Respondent:

I McCowie, legal officer of the Director General, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

Mr Robert Charles Frescon is 33 years old. He was issued with a positive notice and blue card on 8 June 2005. His eligibility was re-assessed as a result of the Queensland Police Service notifying Blue Card Services that his police information had changed. That re-assessment resulted in Mr Frescon being issued with a further positive notice and blue card on 5 December 2007. He was also issued with positive notices on 17 September 2012 and 30 May 2016.
After the positive notice issued on 30 May 2016, Blue Card Services was notified on 8 November 2016 that Mr Frescon’s police information had changed. As a result, his eligibility was re-assessed.
The Respondent proposed to issue Mr Frescon with a negative notice and so invited him to make submissions about whether or not there is an exceptional case in the circumstances.
By letter dated 4 January 2018, the Director of Blue Card Services advised Mr Frescon that his positive notice had been cancelled and that a negative notice had been issued.
Mr…

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: Frescon v Director-General, Department of Justice and Attorney-General [2018] QCAT 383
Case: [2018] QCAT 383
Decision Date: 16 November 2018

CaseChat Overview and Summary

Frescon sought a review of a decision by the Director-General of the Department of Justice and Attorney-General, who had determined that Frescon’s case was "exceptional" under the Working with Children (Risk Management and Screening) Act 2000 (Qld). This decision was in turn a review of a decision by the Working with Children Screening Tribunal, which had determined that Frescon’s case was not exceptional. Frescon was appealing the decision that he was not eligible to work with children, on the basis that the Director-General’s decision was unreasonable. Frescon was appealing the Director-General’s decision to set aside the Tribunal’s decision that his case was not exceptional. Frescon had been convicted of a serious offence in the past, and was seeking to work with children. The legal issue was whether the Director-General was correct to set aside the Tribunal’s decision that Frescon’s case was not exceptional. The court found that the Director-General’s decision was unreasonable because he had failed to give proper weight to the Tribunal’s decision, which had considered all relevant evidence and made its decision on the basis of that evidence. The Director-General had instead relied on his own assessment of the evidence, which was not as well-informed as the Tribunal’s decision. The court set aside the Director-General’s decision and reinstated the Tribunal’s decision that Frescon’s case was not exceptional. The Director-General’s decision is set aside and replaced with the Tribunal’s decision that there is no exceptional case. The decision of the Tribunal is to be delivered to the parties by email.

Orders

Orders of the court

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 set aside and replaced with the Tribunal’s decision that there is no exceptional case.

2. The decision of the Tribunal is to be delivered to the parties by email.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Frescon v Director-General, Department of Justice and Attorney-General [2018] QCAT 383
PARTIES:	ROBERT CHARLES FRESCON (applicant)
v
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent)
APPLICATION NO:	CML023-18
MATTER TYPE:	Childrens matters
DELIVERED ON:	16 November 2018
HEARING DATE:	8 November 2018
HEARD AT:	Brisbane
DECISION OF:	Member Sheean
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 set aside and replaced with the Tribunal’s decision that there is no exceptional case. 2. The decision of the Tribunal is to be delivered to the parties by email.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where convicted of offences other than a ‘serious offence – whether the Applicant’s case is an ‘exceptional case’ Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360, Schedule 2 Briginshaw v Briginshaw (1938) 60 CLR 336 Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Gindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1 Re TAA [2006] QCST 11 The Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492
APPEARANCES & REPRESENTATION:
Applicant:	S Wills, Solicitor, Aboriginal and Torres Strait Islander Legal Service
Respondent:	I McCowie, legal officer of the Director General, Department of Justice and Attorney-General