Nam v Director-General, Department of Justice and Attorney-General - [2023] QCAT 343

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

NAM v Director-General, Department of Justice and Attorney-General [2023] QCAT 343

PARTIES: NAM

(applicant)

V

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML 302-21

MATTER TYPE:

Childrens matters

DELIVERED ON:

1 September 2023

HEARING DATE:

9 February 2023

Written submissions 20 February 2023, 9 March 2023, and 23 March 2023

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), 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;

(d)   is prohibited to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, or any innocent third party to or referred to in this proceeding, save as is necessary for the parties to engage in and progress this proceeding.

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

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant’s blue card was cancelled for offences against the Criminal Code - where the applicant sought an internal review of the decision to cancel his blue card and issue him with a negative notice - where the applicant seeks to review a decision not to cancel his negative notice – where the applicant contends his criminal activity was between two adults in a private setting – where the applicant demonstrated an absence of insight into his criminal activity in terms of socially acceptable conduct

Criminal Code Act 1899 (Qld), s 227A, s 227B

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66

Human Rights Act 2019 (Qld), s 13, s 15, s 21, s 23, s25, s 26, s 48

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 294, s 354

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

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303

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 & Anor [2004] QCA 492

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Re TAA [2006] QCST 11

SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392

TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

A. Sanders – Advocacy Officer for Blue Card Services

REASONS FOR DECISION

It is not uncommon…

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: Nam v Director-General, Department of Justice and Attorney-General [2023] QCAT 343
Case: [2023] QCAT 343
Decision Date

CaseChat Overview and Summary

Nam v Director-General, Department of Justice and Attorney-General concerned a dispute between the applicant and the respondent regarding the refusal to cancel a negative notice issued under the Working with Children Act 2009 (Qld). The applicant, who had previously been issued a Blue Card, sought to have the negative notice, which was issued on 9 November 2021, reconsidered and subsequently cancelled. The respondent upheld the negative notice after reassessing the applicant's eligibility, leading the applicant to apply for a review of this decision.

The key legal issues before the court involved whether the applicant's privacy expectations were sufficiently understood and respected, whether the applicant's case was exceptional under the Working with Children Act, and whether the applicant demonstrated the requisite insight into his past conduct to warrant trust in the care of children or young people. These issues required a thorough examination of the applicant's understanding and acknowledgment of privacy considerations, the exceptional circumstances criteria under the Act, and the applicant's insight into his past conduct.

The court found that the applicant did not demonstrate a proper understanding of privacy expectations, failed to identify relevant factors in determining if his case was exceptional, and did not possess the necessary insight into his past conduct. The court concluded that these failures indicated the applicant was not suitable for a Blue Card, and that it would not be in the best interests of children to issue the applicant a Blue Card. As such, the court confirmed the respondent's decision to refuse to cancel the negative notice.

The final orders of the court were to confirm the respondent's decision to refuse to cancel the negative notice issued on 9 November 2021, and to dismiss the applicant's application for review. The court's reasoning was based on the applicant's demonstrated lack of insight and understanding regarding privacy and exceptional circumstances under the Working with Children Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This resulted in the respondent cancelling the positive notice that supported the Blue Card and issuing a negative notice on 9 November 2021. In response thereto, the applicant requested the respondent to reconsider the negative notice, asserting it was issued on wrong or incomplete information. The respondent then reassessed the applicant’s eligibility. The result of that reassessment was a decision made on 5 August 2021 to refuse to cancel the negative notice (the Decision). On 3 September 2021, the applicant then applied to this Tribunal for a review of the Decision. As discussed in these reasons, the applicant fails in that application. A statement made by the applicant in his final closing submissions, namely his written reply to the respondent’s written closing submissions, which I have extracted at paragraph [54] later in these reasons, demonstrates to me that: (a)the applicant fails to understand the fundamental aspect of respect for privacy that a reasonable adult would expect to be afforded, and as such has failed to demonstrate that he could readily afford a child or young person such privacy; (b)the applicant fails to understand the relevant factors that must be considered in determining whether his case in an exceptional one within the meaning of the WWCA; and(c)in the premise of these two factors, the applicant does not possess the requisite degree of insight into his offending conduct such that he presents as a person in whom the care of children or young people in an employment or business circumstance should be entrusted. It is not a matter of whether his offending conduct occurred only between adults in a private setting as part of a private relationship as compared to conduct in a work setting involving persons, in particular children or young people, in his care. The relevant matter is whether he has insight into this offending conduct such that he possesses the ability to perceive clearly or deeply the inner nature of things, or a penetrating understanding of a complex situation or problem.[2] [2]These are two dictionary definitions of the word ‘insight’ – see Collins Pocket Dictionary of the English Language – Williams Collins Sons & Co Ltd – London – 1989. In my opinion, because of his failures as I have just mentioned, he has done neither. As such, I formed the view it would not be in the best interests of children for the applicant to be issued a Blue Card. I was therefore satisfied that the applicant’s case is ‘exceptional’ within the meaning of s 221 of the WWCA. Accordingly the Decision was confirmed. This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, more particularly s 354 therein, read together with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I must exercise this jurisdiction in accordance with both those pieces of legislation and the Human Rights Act 2019 (Qld) (the HRA), and in doing so I have all the functions of the decision-maker in terms of the decision to be made.[3] [3]QCAT Act s 19.

Ratio Decidendi

Legal Principle Established

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CITATION:	NAM v Director-General, Department of Justice and Attorney-General [2023] QCAT 343
PARTIES:	NAM
(applicant)
V
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)
APPLICATION NO/S:	CML 302-21
MATTER TYPE:	Childrens matters
DELIVERED ON:	1 September 2023
HEARING DATE:	9 February 2023 Written submissions 20 February 2023, 9 March 2023, and 23 March 2023
HEARD AT:	Cairns
DECISION OF:	Member Taylor
ORDERS:	1. Pursuant to s 66(1) of the *Queensland Civil and Administrative Tribunal Act* 2009 (Qld), 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; (d) is prohibited to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, or any innocent third party to or referred to in this proceeding, save as is necessary for the parties to engage in and progress this proceeding. 2. 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 of the *Working with Children (Risk Management and Screening) Act* 2000 (Qld) is confirmed.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant’s blue card was cancelled for offences against the Criminal Code - where the applicant sought an internal review of the decision to cancel his blue card and issue him with a negative notice - where the applicant seeks to review a decision not to cancel his negative notice – where the applicant contends his criminal activity was between two adults in a private setting – where the applicant demonstrated an absence of insight into his criminal activity in terms of socially acceptable conduct Criminal Code Act 1899 (Qld), s 227A, s 227B Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66 Human Rights Act 2019 (Qld), s 13, s 15, s 21, s 23, s25, s 26, s 48 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 294, s 354 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 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 & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Re TAA [2006] QCST 11 SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392 TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	A. Sanders – Advocacy Officer for Blue Card Services