ISC v Director-General, Department of Justice and Attorney-General - [2023] QCAT 304

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

ISC v Director-General, Department of Justice and Attorney-General [2023] QCAT 304

PARTIES:

ISC

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL

(respondent)

APPLICATION NO/S:

CML124-22

MATTER TYPE:

Childrens matters

DELIVERED ON:

27 June 2023

HEARING DATE:

13 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Davies

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is not “exceptional” within the meaning of s 225 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 an exceptional case.

2.     The publication of:

(a)     The contents of a document or thing filed in or produced to the Tribunal;

(b)     Evidence given before the Tribunal; and

(c)     Any order made or reasons given by the Tribunal

is prohibited to the extent that it could identify or lead to the identification of ISC, any child, or any non-party to the proceeding.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – application for review of decision to issue negative notice – where the applicant has been convicted of a serious, but not a disqualifying offence, and other offences - implications under the Working with Children (Risk Management and Screening) Act 2000 (Qld) of those convictions – whether this is an exceptional case in which it would not harm the best interests of children for the applicant to be given a working with children clearance

Human Rights Act 2019 (Qld), s 23, s 25, s 26
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 225, s 226, s 228, s 353, s 360

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87

Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492

APPEARANCES & REPRESENTATION:

Applicant:

C McGee, Solicitor, Gilshenan & Luton

Respondent:

C A Davis, Solicitor, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction and procedural background

The Applicant (ISC) was issued with a working with children clearance (a Blue Card) in Queensland on two occasions in 2007 and 2019. During the currency of ISC’s most recent Blue Card, the Respondent (Blue Card Services) was notified of police and other information relevant to ISC. The receipt of this information caused Blue Card Services to reassess ISC’s eligibility to continue to hold a Blue Card.
The police information that caused Blue Card Services to reassess ISC’s eligibility was that in 2002 ISC was convicted, in the United Kingdom, of the offence of ‘manslaughter – gross negligence’. The events that gave rise to the charge and conviction took place in 2000.
The other information that Blue Card Services received concerned an assertion that ISC had engaged in inappropriate behaviour, namely bullying. This behaviour allegedly occurred whilst ISC was engaged in employment as a sports coach.
During the course of Blue Card Services reassessment ISC’s Blue Card expired. ISC submitted an application to renew his Blue Card. Blue Card Services assessed ISC’s eligibility for renewal of his Blue Card having regard to the police and other information referred to above.
On 31 March 2022 Blue Card Services issued ISC a negative notice (Negative Notice Decision). This decision was issued under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act).
On 13 April 2022 ISC filed an application with the Tribunal to review the Negative Notice Decision.

Legislative framework and role of Tribunal

The principal legislation, relevant to a review by this Tribunal of the Negative Notice Decision are the WWC Act, under which the decision was made, and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) – under which the Tribunal exercises its review jurisdiction.
The object of the WWC Act is promote and protect the rights, interests, and wellbeing of children and young people in Queensland. It does this by a scheme requiring the development and implementation of risk management strategies and for the screening of persons.[1]
[1]WWC Act s 5.
The Negative Notice Decision is a reviewable decision under the WWC Act. Specifically, it is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act.
The purpose of a review by this Tribunal of the Negative Notice Decision is to produce the correct and preferable decision.[2] In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits. That is to say, this Tribunal must come to a decision on the evidence before it.
[2]QCAT Act s 20(1).
Further, in deciding this matter, this Tribunal has all the functions of the original decision maker. In exercising the functions of the original decision maker, this Tribunal is, like the original decision maker, guided by the principles set out in the WWC Act and, in addition, is required to comply with that Act. This is of particular relevance, where the WWC Act sets out mandatory requirements.
The principles set out in the WWC Act are, in summary, that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[3]
[3]WWC Act ss 6 and 360.
Relevantly for this matter, the WWC Act sets up slightly different regimes for deciding a working with children application where an applicant has convictions for an offence other than a serious offence, and where an applicant has a conviction for a serious offence.[4]
[4]WWC Act ss 221 and 225. As to what constitutes a ‘serious offence’ is set out in s 15 of the WWC Act.
Where, as is the case here, ISC has been convicted of a serious offence, s 225 of the WWC Act provides that a negative notice must be issued unless ISC’s case is an ‘exceptional case’ in which it would not harm the best interests of children for ISC to be issued with a working with children clearance.
The term ‘exceptional case’ is not specifically defined in the WWC Act. As to what constitutes an exceptional case is a question of fact and degree having regard to the intent and purpose of the legislation. Further, it is a term of common use in everyday language and the application of the concept of exceptional case should be unhampered by any special meaning or interpretation.[5]
[5]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] – [35].
The WWC Act sets out matters that this Tribunal must have regard to when deciding whether ISC’s case is exceptional. Those mandatory considerations are where, as here, the applicant has a conviction[6] and where there is other relevant information about the applicant.[7] The test of relevance is objective. It is whether this Tribunal reasonably believes the information is relevant to deciding whether it would be in the best interests of children for ISC to be issued with a working with children clearance.
[6]WWC Act s 226
[7]WWC Act s 228.
In addition, in a review such as this, the Tribunal is a ‘public entity’ and is therefore required to comply with s 58 of the Human Rights Act 2019 (Qld) (HRA). Subject to some presently irrelevant exceptions, that section prohibits a public entity from making a decision that is not compatible with human rights or without considering human rights that are relevant to the decision. The human rights that are relevant to ISC include the right to privacy and reputation and the right to a fair hearing. The human rights of children are also relevant to this review. Those rights relevantly are that every child has the right to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’ as provided for in s 26(2) of the HRA.

Evidence

The evidence put before the Tribunal by Blue Card Services, other than written submissions, consisted of documentary material[8] that gave context to the Negative Notice Decision. This material included a sixteen-page document that set out the reasons for the issue of the Negative Notice Decision (Reasons Document).
[8]Exhibit 1.
ISC’s documentary evidence included his personal statement[9] and twelve statements in support of his application.[10] ISC and the authors of those statements in support also gave oral evidence at the hearing and were examined by the representative of Blue Card Services.
[9]Exhibit 3.
[10]Exhibits 4 – 15.
Before discussing the central issue in this proceeding – whether ISC’s case is exceptional – by reference to the evidence before the Tribunal, it is appropriate to note that certain relevant matters were not in dispute.
It was not in dispute that ISC has a conviction for serious offence; namely ‘manslaughter – gross negligence’. Further, that conviction was in 2002 and was reached by a jury after a lengthy trial, that the victim was 17 years old at the time of his death and that his death occurred during an activity which was under the control of ISC.
The parties were also in agreement as to the legal framework that applies to the determination of what constitutes an exceptional case under s 225 of the WWC Act. In closing oral submissions, the representative of ISC adopted as a correct statement of the law the written submissions of Blue Card Services[11] at paragraphs [16] – [23].
[11]Exhibit 17 at [16] – [23].
Where the parties disagree is in respect of the application of this legal framework to the evidence. Not surprisingly, a significant focus of both the written and oral evidence was on ISC’s conviction for the serious offence and his conduct subsequent to his conviction.
In summary, ISC’s position is that his case is exceptional. The two main bases that ISC contends that his case is exceptional are, firstly, that proper regard needs to be had to the circumstances relating to his conviction for manslaughter and, secondly, his conduct in the period since his conviction.
In its submissions, both written and oral, the position of Blue Card Services is that ISC’s case falls short of being an exceptional case when one has regard to the principles for the administration of the WWC Act.
In closing oral submissions three principal matters were emphasised by the representative of Blue Card Services.
The first of these matters was that a number of the twelve essentially character witnesses who gave oral evidence on behalf of ISC did not understand or did not fully appreciate that ISC’s conviction for the offence of manslaughter necessarily involved gross negligence. This, it was submitted, undermined their evidence in support of ISC.
The second of these matters was the contention that the evidence before the Tribunal did not establish that ISC had sufficient insight into the flawed decision making that resulted in his conviction.
The third of these matters is that doubts remain about the decisions that ISC made on the day of the incident and with these doubts remaining the risk to children or young people has not necessarily abated.
The representative of Blue Card Services also appropriately made the point that should ISC be issued with a Blue Card he would be able to work in any child related employment and not just for the purposes for which he has sought the card. Further, it was submitted that although the serious offence occurred some time ago, the mere passage of time without further charges or convictions is not of itself anything more than what is expect of all members of the community.

Discussion

In reviewing the evidence to address the question of whether ISC’s case is exceptional it is useful to identify the matters that must or should be considered. Those matters can be summarised as follows:
(a)The principles for the administration of the WWC Act summarised in paragraph [12] above.
(b)The matters that the WWC Act mandates must be considered. Relevantly, these matters are set out in s 226(2) (the s 226 matters) in respect of a conviction or charge and s 228(2) (the s 228 matters) in respect of the other relevant information (i.e., the bullying assertion referred to in paragraph [3]).
(c)Any other matters that are relevant to the decision.[12]
(d)Human rights relevant to the decision.[13]
[12]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
[13]HRA s 58(1).
As to the principles for the administration of the WWC Act, it is appropriate to re-emphasise the overarching principles applicable to this decision. They are that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
In respect of the s 226 matters, it is not in issue that ISC was, in 2002, tried and convicted on indictment of manslaughter after a lengthy jury trial. Further, ISC was, on his own confession, convicted at the same time of failing to take reasonable care for the health and safety of persons who may be affected by acts or omissions at work. The events that gave rise to these convictions took place in 2000. The incident that gave rise to the indictment and the trial took place in outside of Australia.
It is also accepted by ISC that this is a serious offence for the purposes of the WWC Act. The penalties imposed on ISC was a fine in respect of the manslaughter and a discharge without penalty in respect of the health and safety offence.
There are three aspects of the s 226 and s 228 matters that merit specific comment in the light of the evidence. They are:
(a)the nature of the offences and their relevance to employment or carrying on a business that involves or may involve children.
(b)in relation to the other relevant information (the bullying allegation) the nature of the information, including the circumstances and gravity of the behaviour or conduct the subject of the information.
(c)anything else relating to the commission of the offence or the other relevant information that this Tribunal reasonably considers to be relevant to the assessment of ISC.
It is self-evident that manslaughter is, on any view of it, a serious offence that merits its inclusion within the statutory definition of such an offence. What makes the offence even more relevant for present purposes is that the gross negligence, on which the charge was based, resulted in the death of a 17-year-old youth who was under ISC’s supervision. What I take from the conviction is that a jury was satisfied beyond reasonable doubt that ISC owed a duty to the deceased and that he breached that duty in a way that put his conduct beyond compensation under the civil law of negligence. Indeed, that his negligence was such that it showed a criminal disregard for the safety of the deceased. It is beyond the remit of this Tribunal to go behind the conviction.
By itself, the conviction does show that ISC failed, in 2000, to provide a safe and protective environment a young person. This is important in the context of the WWC Act that makes the interests of children and young people paramount.
What must also be considered by this Tribunal is the penalty imposed and, if the court did not impose an imprisonment order, the court’s reasons for its decision. Here the imposition of a fine for a serious offence rather than a custodial sentence or any other sanction, if available, to the court is relevant. Despite inquiries, a copy of the judge’s sentencing remarks was not in evidence before the Tribunal. Contemporary media reports, that were in evidence, give prominence to judicial comments on institutional failings that contributed to the tragic outcome.
In the absence of formal sentencing remarks, I infer that the judge, in sentencing, took into account such factors such as the maximum penalty for the offence, the nature and seriousness of the harm done, and other relevant factors including, it would seem, institutional failings that gave rise to the tragic circumstances.
It can be observed that the imposition of a fine rather than a custodial sentence, does show that the judge did not consider that the conduct of ISC merited a more severe penalty. Indeed, even though the conviction was outside Australia, the absence of a custodial sentence where there has been loss of life because of gross negligence, does seem a lenient penalty.
ISC’s evidence consisted of a detailed personal statement and oral evidence. I consider that ISC was an open and honest witness and, in my view, did have insight into the consequences of his conduct that gave rise to his convictions.
The twelve witnesses who were called by ISC in support of his application all provided written statements and gave oral evidence. These witnesses came to know ISC through the sport that he coached. They were either coaches or officials in that sport or parents of children who had been coached by ISC.
These witnesses all had knowledge of his conviction for the offence of manslaughter. It seems that all these witnesses had read (or at least had been given the opportunity to read) the Blue Card Services ‘Reasons’ document. However, as was submitted by Blue Card Services, although universally supportive of ISC, their precise knowledge of the elements of the serious offence, including the vital element of gross negligence, was not universal.
Three witnesses were current or former police officers who were parents of children that ISC had coached. Perhaps not surprisingly, the two current police officers gave evidence that they had conducted, by publicly available means, internet searches of ISC and, as a result, had become aware of his conviction for manslaughter. This information did not alter the positive view that these three witnesses held of ISC’s character or hold concerns for them that he was interacting with their children.
All ISC’s witnesses had seen him interact with children and young people whilst he was engaged in sports coaching – either as parents of children or as colleagues of ISC. None of the witnesses had negative comments regarding ISC’s extensive interaction with children and young people. For example, none of the witnesses had observed behaviour that they considered amounted to bullying. All ISC’s professional colleagues were laudatory of his skills as a sports coach.
After considering the evidence and the submissions of the parties, I have come to the view that it would not harm the best interests of children for ISC to be issued with a working with children clearance. I have come to this view for three principal reasons.
Firstly, that although ISC was convicted of a serious offence in 2002, there are no further charges and convictions in evidence. On one view of it this is simply conduct expected of a member of society. However, ISC also has had a sound work patten, is well qualified for the career path that he has pursued since coming to Australia about 16 years ago and a history of community involvement. Indeed, ISC has undertaken several courses that were designed to increase his awareness and knowledge in relation to the health and safety of children. Further, ISC has held a working with children clearance (or equivalent) for some years without incident.
Secondly, I formed the view that ISC does have insight into and acceptance of his offending. I accept his evidence that the death of the youth under his supervision has weighed heavily on his mind for over 20 years.

Thirdly, I consider that the circumstances surrounding the conviction, including the conduct of ISC and, particularly, the penalty imposed are unique to the extent that they do support the contention that ISC’s case is exceptional.

Human Rights Act

There are, in this matter, several competing human rights relevant to the outcome of this application. For ISC the human rights include his right to privacy and reputation[14] and his right to take part in public life.[15] In respect of children the HRA provides that it is the right of every child to the protection that is needed by the child, and it is in the child’s best interest because of being a child.[16] In coming to a decision in this matter I have evaluated the competing human rights in coming to the decision that ISC’s case is exceptional.
[14]HRA s 25.
[15]HRA s 23.
[16]HRA s 26.

De-identification order

The Tribunal has the power to make an order prohibiting the publication of certain information including information that may enable a person to be identified. A non-publication order may be made if the Tribunal considers that such an order is necessary in the interests of justice.[17] After considering submissions of the parties, who supported a de-identification order, I consider that the interests of justice will be served by a non-publication order. In particular, I consider that such an order is necessary to prevent the identification of children who could otherwise be identified without such an order.

[17]QCAT Act, s 66.

Conclusion

For the reasons set out above I consider that ISC’s case is exceptional within the meaning of s 225 of the WWC Act and that it would not harm the interests of children and young people for him to have a working with children clearance.