Launiuvao v Director-General, Department of Justice and Attorney-General - [2018] QCAT 322

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Launiuvao v Director-General, Department of Justice and Attorney-General [2018] QCAT 322

PARTIES:

FAGU ANDY LAUNIUVAO
(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML004-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 September 2018

HEARING DATE:

24 July 2018

HEARD AT:

Brisbane

DECISION OF:

Member Dr Collier

ORDERS:

1. The decision of the delegate of the chief executive made on 29 November 2017 to issue a negative notice and refuse to issue a blue card to Fagu Andy Launiuvao is set aside.

2. A positive notice is to be issued to Fagu Andy Launiuvao.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where the chief executive was provided with police information about the Applicant and issued a negative notice – where Applicant convicted of a ‘serious offence’ – whether an ‘exceptional case’

Commission for Children and Young People and Child Guardian Act 2000 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32
Working With Children (Risk Management & Screening) Act 2000 (Qld), s 225(1), s 225(2), s 226(2), chapter 8
Part 1, schedule 1, schedule 2

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

I McCowie, Legal Officer, Department of Justice Attorney-General

REASONS FOR DECISION

Mr Launiuvao is 26 years of age. His family is from Samoa. He is in the third year of his four-year Bachelor of Primary Education degree at the University of Southern Queensland, needing principally to undertake his practicum in order to compete his degree and become a teacher.
He is also a devout Christian and a leader in his church, the Darra-Jindalee Catholic Church. He has been prominent as a youth leader in his church and within the Samoan community. For some time he has been active with youth generally, developing young sports-people, and supporting young people within the Samoan community.
He was issued a blue card to participate in his community work on 2 November 2010, this card expiring on 2 November 2013 and not being renewed.
To complete his teaching degree, and to offer his leadership to youth he requires a current blue card. The holder of a blue card is permitted to undertake regulated employment,[1] essentially working with children and young people.
[1]Working with Children (Risk Management and Screening) Act 2000, Chapter 8, Part 1, and
Mr Launiuvao was married in November 2017 and now has a child under the age of one year with his wife.
He comes from a close-knit family: he is the eldest child; he has a twin sister, Nu’u and younger brothers Setefano and Alefosio.
During 2012, when he was aged 20, he suspended his university studies for over two years to work in order to support his family. His father, the principal family…

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: Launiuvao v Director-General, Department of Justice and Attorney-General [2018] QCAT 322
Case: [2018] QCAT 322
Decision Date: 21 September 2018

CaseChat Overview and Summary

The case of Launiuvao v Director-General, Department of Justice and Attorney-General involved a dispute regarding the issuance of a blue card to Mr. Fagu Andy Launiuvao. Mr. Launiuvao, a blue card holder, was convicted of a serious offence and a negative notice was issued by the delegate of the chief executive, refusing to issue him a blue card. The Queensland Civil and Administrative Tribunal was tasked with determining whether this was an exceptional case and whether it would harm the best interests of children and young people to issue a positive notice to Mr. Launiuvao.

The primary legal issue the Tribunal had to decide was whether Mr. Launiuvao’s conviction constituted an exceptional case under the relevant legislation. This involved considering the nature of the offence, the circumstances surrounding it, and whether there were any mitigating factors that would justify issuing a positive notice despite the conviction. Additionally, the Tribunal had to assess whether issuing a positive notice would harm the best interests of children and young people, considering the potential for Mr. Launiuvao to be in close and intimate contact with them.

In reaching its decision, the Tribunal noted several factors in favour of Mr. Launiuvao. He had no prior criminal history and presented as a credible and truthful witness. The Tribunal also considered his current employment, his stable family situation, and his remorse for the incident. The Tribunal concluded that the circumstances surrounding the offence were exceptional and that there were no indications that issuing a positive notice would harm the best interests of children and young people. Consequently, the Tribunal set aside the decision to issue a negative notice and ordered that a positive notice be issued to Mr. Launiuvao.

The Tribunal's orders included setting aside the decision of the delegate of the chief executive made on 29 November 2017 to issue a negative notice and refuse to issue a blue card to Mr. Launiuvao, and issuing a positive notice to him instead. This decision highlights the importance of considering the totality of circumstances and the potential for rehabilitation in exceptional cases under child welfare legislation.

Orders

Orders of the court

1. The decision of the delegate of the chief executive made on 29 November 2017 to issue a negative notice and refuse to issue a blue card to Fagu Andy Launiuvao is set aside.

2. A positive notice is to be issued to Fagu Andy Launiuvao.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As a result, the Tribunal has to be cognisant of the fact that a blue card holder may be in close and intimate contact with children and young people, irrespective of the original basis on which a blue card was issued, and any consequence this may have for their safety and well being.Applicant’s evidence Background information concerning Mr Launiuvao has been described earlier. But there are a number of factors relevant to the original offending and his suitability as a blue card holder that were raised during the hearing. Mr Launiuvao has been charged with no criminal offences before or after the one day in which the offences disclosed above occurred. He has no evident criminal proclivities. Mr Launiuvao presented before the Tribunal as a credible witness of truth. At the time of the offending he was employed as a baggage handler at Brisbane Airport. At that time he had suspended his university studies for two years and undertaken this work in order to support his parents and siblings financially. Mr Launiuvao asserted that the company of the other baggage handlers was a bad influence on him and that they were generally undesirable company. He agreed that he was inebriated on the evening of 17 August 2014 when the events took place at Fortitude Valley. He agreed that he continues to drink occasionally, but asserted that alcohol makes him happy rather than aggressive. He said that when he faces life’s troubles he now turns to the things he loves: his faith, his family, and ‘… I now turn for spiritual direction from priests and other leaders.’ Prior to the charges in August 2014 his relationship with a girlfriend of long-term standing, four years, had broken down and they had parted. He believes that this had an adverse effect on his demeanour and, combined with other factors, led him to behave in ways that were uncharacteristic. He married in November 2017, is in a stable relationship with his wife, and now has a young child. He believes that he would not be involved in activities in the future that may compromise his family relationship. Mr Launiuvao denied to the Tribunal that he did any of the things for which he was charged by the police. He agreed that his conduct on that day in August 2014 may have been distressing for the women involved, but he says he was not aggressive towards them; he would not do that to a woman. He said that he was represented by a legal aid lawyer when the charges came before the District Court. He said he informed his lawyer that he wished to plead not guilty to the two charges of sexual assault being heard. He said to the Tribunal that he was advised by his lawyer that he may be believed in regard to one charge but that, facing two charges against separate women on the same night, the likelihood of being found guilty was high. He was advised to plead guilty and accept the earlier sentencing indication of community service with no conviction recorded. He accepted that advice and was duly sentenced with no conviction recorded.

Decision

Reasons for decision

I am satisfied to the relevant standard of proof that this is an exceptional case and it would not harm the best interests of children and young people to issue a positive notice to Fagu Andy Launiuvao.Decision The Tribunal makes the following Orders:(a)The decision of the delegate of the chief executive (child safety) made on 29 November 2017 to issue a negative notice and refuse to issue a blue card to Fagu Andy Launiuvao is set aside.(b)A positive notice is to be issued to Fagu Andy Launiuvao.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Launiuvao v Director-General, Department of Justice and Attorney-General [2018] QCAT 322
PARTIES:	FAGU ANDY LAUNIUVAO (applicant)
v
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent)
APPLICATION NO/S:	CML004-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	21 September 2018
HEARING DATE:	24 July 2018
HEARD AT:	Brisbane
DECISION OF:	Member Dr Collier
ORDERS:	1. The decision of the delegate of the chief executive made on 29 November 2017 to issue a negative notice and refuse to issue a blue card to Fagu Andy Launiuvao is set aside. 2. A positive notice is to be issued to Fagu Andy Launiuvao.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where the chief executive was provided with police information about the Applicant and issued a negative notice – where Applicant convicted of a ‘serious offence’ – whether an ‘exceptional case’ Commission for Children and Young People and Child Guardian Act 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Working With Children (Risk Management & Screening) Act 2000 (Qld), s 225(1), s 225(2), s 226(2), chapter 8 Part 1, schedule 1, schedule 2 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	I McCowie, Legal Officer, Department of Justice Attorney-General