Iosefa v Director-General, Department of Justice and Attorney-General - [2018] QCAT 66

CITATION:	Iosefa v Director-General, Department of Justice and Attorney-General [2018] QCAT 66
PARTIES:	Poto Phindy Iosefa (Applicant)
v
Director-General, Department of Justice and Attorney-General (Respondent)
APPLICATION NUMBER:	CML236-17
MATTER TYPE:	Childrens matters
HEARING DATE:	5 March 2018
HEARD AT:	Brisbane
DECISION OF:	Member Sheean
DELIVERED ON:	8 March 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s221(2) of the *Working With Children (Risk Management and Screening) Act 2000* (Qld) is confirmed.
CATCHWORDS:	REVIEW JURISDICTION – BLUE CARD – conviction of offence of common assault involving a child in the course of regulated employment – whether an “exceptional case” warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360 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 Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 Kent v Wilson [2000] VSC 98 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 Perry and Brown’s Patents (1930) 48 RPC 200 Re TAA [2006] QCST 11 The Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492
APPEARANCES:
APPLICANT:	Ms Poto Phindy Iosefa
RESPONDENT:	Director-General, Department of Justice and Attorney-General

REPRESENTATIVES:

APPLICANT:

Self

RESPONDENT:

Mr I McCowie represented the Director-General, Blue Card Services, Justices Services, Department of Justice and Attorney-General

(Respondent)

REASONS FOR DECISION

Introduction

Ms Poto Phindy Iosefa is a mother of 6 and a grandmother of 4. She wishes to renew her blue card to continue to work with children, as she has been doing for much of her adult life.
The Chief Executive, Blue Card Services, which has responsibility for the issuing of positive notices and blue cards, issued her with a negative notice on 8 September 2017.
Ms Iosefa seeks a review of that decision.
Ms Iosefa was convicted in the Ipswich Magistrates Court of common assault, the complainant being a male child aged 10. Ms Iosefa entered into a $300 recognisance on her own undertaking and was ordered to be of good behaviour for 4 months. No conviction was recorded.
Because this offence is not a serious offence under the legislation, Ms Iosefa is entitled to receive a positive notice and blue card unless it is considered that hers is an exceptional case such that it would harm the best interests of children for her to have a positive notice.[1]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221.

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: Iosefa v Director-General, Department of Justice and Attorney-General [2018] QCAT 66
Case: [2018] QCAT 66
Decision Date: 8 March 2018

CaseChat Overview and Summary

In the case of Iosefa v Director-General, Department of Justice and Attorney-General, the applicant, Iosefa, sought judicial review of a decision made by the Director-General of the Department of Justice and Attorney-General, regarding a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld). The dispute centred around the Director-General's decision to deny Iosefa's application for a blue card due to a conviction for common assault involving a child during his employment. The case was heard in the Queensland Supreme Court.

The primary legal issue before the court was whether Iosefa's case constituted an "exceptional case" warranting a departure from the general rule that a positive notice must be issued when a person is convicted of an offence involving a child in the course of regulated employment. The court was tasked with applying the factors outlined in section 226 of the Act to determine whether Iosefa's case was exceptional. These factors included the nature and circumstances of the offence, the applicant's character, and the risk they pose to children.

The court found that Iosefa's case did indeed constitute an exceptional case. It held that the Director-General was correct in concluding that a positive notice should not be issued in Iosefa's case. The court determined that the factors outlined in section 226 of the Act supported this conclusion, particularly considering Iosefa's otherwise good character and the specific circumstances of the offence. The court was satisfied that Iosefa did not pose a significant risk to children, which justified the decision to deny the blue card application.

Consequently, the court confirmed the decision of the Director-General that Iosefa's case was "exceptional" within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld). This decision affirmed that the Director-General's decision to deny the blue card application was lawful and appropriate in the circumstances.

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 s221(2) of the Working With Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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