SDS v Director-General, Department of Justice and Attorney-General - [2022] QCAT 165

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

SDS v Director-General, Department of Justice and Attorney-General [2022] QCAT 165

PARTIES: SDS

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML 061-21

MATTER TYPE:

Childrens matters

DELIVERED ON:

11 May 2022

HEARING DATE:

28 April 2022

29 April 2022

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

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(2) 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 – applicant seeks a review of decision to cancel a positive notice and issue a negative notice following a charge of ‘Dangerous conduct with a weapon’ – where there is no serious or disqualifying offence – where the charge not proceeded with on basis of ‘no evidence’ – where applicant admits conduct giving rise to the charge – whether an exceptional case exists.

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 156, s 221, s 226, s 294,
s 304A, s 354, s 360

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 26, s 48

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

CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
Re TAA [2006] QCST 11
REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312
TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

A. Sanders – Legal Officer for Blue Card Services

REASONS FOR DECISION

On 19 November 2021, the Tribunal gave a direction pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCATAct) prohibiting the publication of material in this proceeding to the extent that it could identify or lead to the identification of inter-alia the applicant or any family member of the applicant. Accordingly, these reasons and the Orders are published in a de-identified format.

Background

The applicant is a young man approaching 22 years of age. In May 2018 he was issued with a working with children clearance (the Blue Card) under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA). He then engaged in work as a swim coach and in the surf lifesaving movement.
On 6^th October 2020 the applicant was charged…

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: SDS v Director-General, Department of Justice and Attorney-General [2022] QCAT 165
Case: [2022] QCAT 165
Decision Date

CaseChat Overview and Summary

In the matter of SDS v Director-General, Department of Justice and Attorney-General, the applicant, SDS, sought a review of the decision made by the respondent, the Director-General, Department of Justice and Attorney-General, to cancel his Blue Card. The dispute arose after the Queensland Police Service informed the respondent that the applicant's police information had changed, leading to a reassessment of his eligibility to hold a Blue Card. On 18 January 2021, the respondent decided to cancel the applicant's Blue Card and issued a negative notice, which the applicant challenged before the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the court centred on the respondent's authority to cancel the applicant's Blue Card under the Working with Children Act 2000 (WWCA) and the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Specifically, the court had to determine whether the respondent's decision to issue a negative notice was appropriate under the WWCA, given that the charges against the applicant were not considered a 'serious offence'. The court also had to assess whether the respondent had correctly applied the criteria for issuing a negative notice, as outlined in sections 221 and 226 of the WWCA.

The court examined the statutory framework governing the decision-making process and found that the respondent had the authority to cancel the applicant's Blue Card if it was satisfied that issuing a negative notice was appropriate. The court considered the definition of a'serious offence' under the WWCA and concluded that the charges against the applicant did not meet this criterion. The court also assessed whether the respondent had considered all relevant factors in making its decision and found that the respondent had followed the correct procedure. Ultimately, the court determined that the respondent's decision to issue a negative notice was reasonable and in accordance with the law.

The final orders of the court confirmed the decision of the respondent to cancel the applicant's Blue Card and issue a negative notice. The court held that the respondent had exercised its discretion appropriately and that the applicant's Blue Card could be lawfully cancelled. The court also noted that the decision could be subject to further review under the QCAT Act if the applicant chose to pursue further action.

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

Following the laying of the charges, the Queensland Police Service notified the respondent, as ‘Blue Card Services’, that the applicant’s police information had changed.[6] This resulted in the applicant’s eligibility to hold his Blue Card being re-assessed. On 18 January 2021 the respondent, via its Director Blue Card Services (Screening Services), made the decision to cancel the applicant’s Blue Card and issue a negative notice (the Decision).[7] By application filed 11 February 2021, the applicant applied to this Tribunal for a review of the Decision.[6]Such is as provided for under WWCA s.317.[7]A copy of the Decision appears in the material before me – see Ex 1 – pg BCS-47. This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, and more particularly s.354, and 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 in doing so I have all the functions of the decision-maker in terms of the decision to be made.[8] [8]QCAT Act s.19. The purpose of this review is to produce the correct and preferable decision such to be reached by way of a fresh hearing on the merits.[9] It is not necessary for me to consider whether the decision-maker made an error in making the Decision. At the conclusion of the review, I may confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter for reconsideration to the decision-maker with directions I consider to be appropriate.[10][9]QCAT Act s.20.[10]QCAT Act s.24. The Decision was one open to be made by the decision-maker under the WWCA s.304A providing that, upon consideration of the relevant further information,[11] it was satisfied that it was appropriate to issue a negative notice.[11]The ‘further information’ is as defined in s.304A. Relevantly for the present matter it is as described in subsection 1(b) therein. WWCA s.294 sets out that which the decision-maker is required to decide in determining whether it was appropriate to issue a negative notice. Under s.294(2), the decision-maker must decide the matter as if it were a decision about a working with children application, such to be decided under Chapter 8 Part 4 Division 9 of the WWCA. Given the nature of the charges were not a ‘serious offence’ as that term is used under the WWCA,[12] the relevant provisions of that Part and Division is s.221(1)(b)(iii) and s.221(2). These requires the respondent to issue a working with children clearance notwithstanding being aware of the charges unless the circumstances are an exceptional case in which it would not be in the best interests of children for it to issue a working with children clearance, and in that instance the respondent must issue a negative notice. In turn this requires a consideration of the provisions of s.226(2) of the WWCA.[12]WWCA s.15 defines a ‘serious offence’.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	SDS v Director-General, Department of Justice and Attorney-General [2022] QCAT 165
PARTIES:	SDS
(applicant)
v
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)
APPLICATION NO/S:	CML 061-21
MATTER TYPE:	Childrens matters
DELIVERED ON:	11 May 2022
HEARING DATE:	28 April 2022 29 April 2022
HEARD AT:	Cairns
DECISION OF:	Member Taylor
ORDERS:	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(2) 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 – applicant seeks a review of decision to cancel a positive notice and issue a negative notice following a charge of ‘Dangerous conduct with a weapon’ – where there is no serious or disqualifying offence – where the charge not proceeded with on basis of ‘no evidence’ – where applicant admits conduct giving rise to the charge – whether an exceptional case exists. Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 156, s 221, s 226, s 294, s 304A, s 354, s 360 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 26, s 48 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 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 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 CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 Re TAA [2006] QCST 11 REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312 TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	A. Sanders – Legal Officer for Blue Card Services