QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Quinn v Director General, Department of Justice and Attorney General [2019] QCAT 275
PARTIES:
AMBROSE EUGENE QUINN
(applicant)v DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL
(respondent)
APPLICATION NO:
CML362-18
MATTER TYPE:
Children matters
DELIVERED ON:
29 August 2019
HEARING DATE:
22 August 2019
HEARD AT:
Bundaberg
DECISION OF:
Member Pennell
ORDER:
That the decision of the Director General, Department of Justice and Attorney-General dated 19 November 2018 that the applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the tribunal’s decision that there is no exceptional case
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – blue card – review of a decision to issue a negative notice – applicant convicted of sexual offence against an adult –whether exceptional circumstances exist – whether risk to children sufficiently negated – whether it is in the best interests of children to issue a positive notice
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 20(2) and s 24(1)
Working with Children (Risk Management and Screening) Act 2000 (Qld), s, 5, s 6, s 6(a), s 221,
s 226(2), s 353, s 354, s 360 and Schedule 2Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
L Benjamin, in-house Government Legal Officer
REASONS FOR DECISION
Introduction
On 9 May 2018, Ambrose Eugene Quinn (‘the applicant’) made an application to be issued with a positive notice and a blue card. Upon receipt of that application, the respondent undertook a criminal history check on the applicant. The information received from the police (‘the police information’) indicated that he had a criminal history in Queensland which included a conviction for sexual assault.[1]
[1]Criminal Code Act 1899 (Qld), s 352.
After receiving the police information, the respondent wrote to the applicant to advise him that the police information raised concerns about his eligibility to hold a blue card.[2] He was provided with an opportunity to respond, which he did. After consideration of his response, the respondent issued a negative notice to him on 19 November 2018.
[2]Letter written on 19 June 2018.
The applicant’s police information contained three entries on his criminal history, all of which were convictions in the Magistrates Court jurisdiction. In 1993, he was fined for refusing to give his name and address to the police. No conviction was recorded on that occasion. In 2007, he contravened a direction given to him by police and he was also fined for that offence. Again, no conviction was recorded. The most recent incident took place in 2009 when he was convicted for the offence of sexual assault. On that…
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- AGLC
- Quinn v Director General, Department of Justice and Attorney General [2019] QCAT 275
- Case
- [2019] QCAT 275
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the tribunal were whether there were protective factors in place that sufficiently mitigated the risk the applicant posed to children, whether the risk of the repetition of the applicant's behaviour was minimal, and whether the risk of harm to children was sufficiently negated such that a positive notice would not harm the best interests of children. The tribunal had to balance these considerations against the paramount principle that the welfare and best interests of a child are paramount. The tribunal also had to consider the applicant's antecedents and criminal history, as well as any positive risk factors, to determine whether the applicant was suitable to work with children.
The tribunal found that the applicant had demonstrated awareness of his alcohol consumption issues and had put preventative measures in place. It was satisfied that the applicant had shown significant insight into his past behaviour and had an appreciation of its impact on the victim. The tribunal also noted that the applicant's criminal history, although serious, was an isolated incident that occurred outside his character. The tribunal was further satisfied that there was no evidence to suggest that the applicant's past behaviour would impact his employment with children. In light of these findings, the tribunal concluded that the Director General's decision to issue a negative notice was not justified, and there were exceptional circumstances warranting a positive notice.
The tribunal set aside the Director General's decision and substituted it with its own decision that there was no exceptional case. The tribunal found that the applicant's past behaviour, while serious, was not indicative of a continued risk to children. The applicant's efforts to address his alcohol consumption issues and his insight into his past behaviour were significant factors in the tribunal's decision. The tribunal was satisfied that the applicant had taken steps to mitigate the risk he posed to children and that a positive notice was appropriate. The tribunal's decision recognised the importance of considering the best interests of children while also taking into account the applicant's efforts to address his past behaviour.
Orders
Orders of the court
That the decision of the Director General, Department of Justice and Attorney-General dated 19 November 2018 that the applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the tribunal’s decision that there is no exceptional case
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
The tribunal also heard from the applicant’s friend with whom he plays golf with.[19] Although I have no criticism of the evidence of this witness, I place very little weight on what he said because I was not surprised to hear that he had only praise for the applicant, and positive things to say about him. I do note that this is not unique in these type of proceedings given the close relationship between the witness and the applicant. [19]Joshua Troy Vea Vea.Consideration of the paramount principle and conclusion The questions to be considered are firstly, whether I can be satisfied that there are protective factors in place which sufficiently mitigate the concerns that the applicant would pose a risk to children; and secondly, whether I can be satisfied that there is little or no risk of the repetition of the applicant’s behaviour. A third question is whether the risk of harm to children is sufficiently negatived so that it could be concluded that a positive notice would not harm the best interests of children. In finding an answer to those questions, a complete analysis is required of all the circumstances relating to the applicant’s antecedents and the determination reached from that analysis should be balanced against the principle that the welfare and best interests of a child are paramount.[20] [20]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a). In regard to the positive risk factors, I am satisfied that the applicant has demonstrated an awareness and an appreciation of the risk that excessive consumption of alcohol plays in his life. I am also satisfied that he has put in place preventative features in his life so that he is now able to better understand and identify the triggers to his excessive consumption of alcohol. I am also satisfied that with the support of his wife, there is every likelihood that those preventative strategies will remain in place. In looking at the antecedents of the applicant, along with his criminal history I am satisfied that the serious offence which took place in 2009 is something which happened outside his character. At times, excessive alcohol consumption has been used as an explanation for a person’s behaviour, however in my view it can never be completely relied upon as an excuse. To the applicant’s credit, in both 2009 and 2019 he acknowledged that his behaviour towards the female taxi driver was inappropriate, and he accepted that this would have adversely impacted upon her and anyone closely associated with her. I am satisfied that the applicant displayed significant insight into what took place on that occasion and has an appreciation of the flow on effect of his actions upon the female complainant. I am particularly mindful that since 2009 there have been no concerning issues raised with regard to the adult’s character and there is no evidence that what took place on that occasion would impact upon his employment with children. Notwithstanding the circumstances of the actual offence, it was not a prolonged attack upon the taxi driver, and he ceased his actions almost immediately. The offence did not involve children; it was not committed in the presence of a child or young person; and nor did it occur within the course of the applicant’s employment. These are important points when giving consideration as to the suitability of any application.