TCD v Director General Department of Justice and Attorney-General
[2023] QCAT 277
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
TCD v Director General Department of Justice and Attorney-General [2023] QCAT 277
PARTIES:
TCD (applicant)
v
DIRECTOR GENERAL DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent)
APPLICATION NO/S:
CML527-20
MATTER TYPE:
Childrens matters
DELIVERED ON:
23 June 2023
HEARING DATE:
21 October 2022
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 the names of the Applicant, any witnesses and the names of any children or third parties referred to in the filed material and at the hearing is prohibited.
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 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
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
A Sanders, Legal Practitioner, Blue Card Services, Department of Justice and Attorney-General
REASONS FOR DECISION
Introduction and de-identification order
This proceeding was commenced by the applicant (TCD) by way of an application to review an administrative decision. TCD’s application is dated 13 December 2020. The decision that TCD seeks to have reviewed by this Tribunal was made by the respondent (Blue Card Services) on 16 November 2020.
On 21 July 2022, the Tribunal made an order in this proceeding under s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) in relation to 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.
The order prohibited publication of these matters to the extent that it could identify or lead to the identification of TCD, any family member of hers, any child, or any non-party to the proceedings save as is necessary for the parties to engage in and progress this proceeding.
The continuation of this non-publication order was canvassed with the parties at the hearing of this matter. Having considered the submissions made by the parties, the order of 21 July 2022, with suitable adaptions, will remain in force. Therefore, these reasons have been prepared consistent with de-identification of the applicant and her family members and witnesses. Hence, the reference in these reasons to the applicant as TCD and the description of TCD’s family members, associates and witnesses are also in a de-identified form.
Procedural background
In October 2019 the TCD applied to the Department of Justice and Attorney-General for a working with children clearance and the issue of what is referred to as a Blue Card. The issue of such a clearance, and thus a Blue Card, is governed by the Working with Children (Risk Management and Screening) Act 2000 (WWC Act). TCD sought a Blue Card so that she could engage in paid employment. Blue Card Services assessed TCD’s application, including submissions and references in support of her application. As a result of that consideration, on 16 November 2020 Blue Card Services issued a negative notice under the WWC Act (the Negative Notice Decision). Central to Blue Card Services’ decision to issue the Negative Notice Decision was TCD’s criminal history, in particular, her conviction for a serious offence.[1]
[1]As to what is a serious offence is set out in s 15 of the WWC Act.
The Negative Notice Decision prompted TCD to make this application to review Blue Card Service’s decision.
For the reasons set out below, I consider that TCD’s situation is exceptional and that the decision of Blue Card Services should be set aside.
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 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.[2]
[2]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.[3] 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.
[3]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.
Those principles 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.[4]
[4]WWC Act ss 6 and 360.
In conducting this review of the Negative Notice Decision, a principal issue for determination is whether an ‘exceptional case’ exists.
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 a conviction for a serious offence.[5]
[5]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, TCD has been convicted of a serious offence and for offences that are other than serious offences the concept of what is an exceptional case is relevant to both situations. In summary, given her conviction for a serious offence, TCD’s case has to be adjudged exceptional for her to be eligible to be issued with a Blue Card.
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.[6]
[6]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] – [35].
In determining whether the TCD’s circumstances constitute an exceptional case it is necessary to consider:
(a)The principles for the administration of the WWC Act discussed above.
(b)The matters that the WWC Act mandates must be considered. Relevantly, these matters are set out in ss 226(2) of the WWC Act (the s 226 matters).
(c)Any other matters that are relevant to the decision.[7]
[7]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
The Tribunal is required to determine whether an exceptional case exists after evaluating all the available evidence before it.[8] In this context it is appropriate to record that there was evidence before the Tribunal that was not before Blue Card Services when the Negative Notice Decision was made.
[8]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
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 TCD 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
TCD’s evidence consisted of three statements by her[9] and statements by two other witnesses.[10] TCD and her two witnesses all gave oral evidence and were questioned by the representative of Blue Card Services. These witnesses had both known TCD for about 15 years. That is, they have known TCD since well before her offending. Despite this, although both these witnesses said that they had knowledge of TCD’s offending, questioning showed that they had what I consider to be a limited understanding of the details of the offences. Nevertheless, they were able to give evidence as to TCD’s character and her current circumstances.
[9]Exhibits 3, 4 and 5.
[10]Exhibits 6 and 7.
The documentary material of Blue Card Services consisted of three sets of documents. These documents contained material relevant to TCD’s criminal history including police reports, sentencing remarks[11] together with copies of documents compiled by the New South Wales government department concerned with families and community services.
[11]Exhibits 1 and 2 and a set of sentencing remarks.
Do TCD’s circumstances constitute an ‘exceptional case’?
In considering the evidence and addressing the question of whether TCD’s circumstances constitute an exceptional case, it is appropriate to firstly consider the matters that the WWC Act, in s 226, mandates that this Tribunal must have regard to and then a consideration of other matters that are relevant to considering TCD’s situation.
The relevant s 226 matters that must be considered in this proceeding are, in summary:
(a)Whether the offences are convictions or charges
(b)Whether the offences are serious or disqualifying offence
(c)When the offences were committed
(d)The nature of the offences and their relevance to employment or carrying on a business that involves or may involve children
(e)In the case of a conviction – the penalty imposed by the court
The s 226 factors – charges and convictions
As to the s 226 matters, it is not in dispute that TCD has a criminal history. That criminal history consists of two convictions for what are, under the WWC Act, not defined as serious offences. Those convictions were for receiving property and concealing a serious indictable offence. The serious offence that TCD has been convicted of is the supply of a prohibited drug within a correctional facility.[12] There is no evidence before the Tribunal of a charge that has not resulted in a conviction.
[12]The offence was committed in New South Wales. Blue Card Services submit, and I accept, that pursuant to the WWC Act schedule 4 this offence is, for present purposes, a serious offence.
The conduct that gave rise to all these convictions took place in 2015. The penalties imposed by the Courts for these convictions consisted of good behaviour bonds for the non-serious offences and a term of imprisonment for the serious offence. This term of imprisonment was suspended upon TCD entering into a bond. The sentencing remarks show that TCD pled guilty to all the offences for she was charged with.
Although these offences did not, in their commission, directly involve children they were committed when TCD was the mother to children. Blue Card Services submit, and I accept, that all TCD’s offences are relevant to making a decision under the WWC Act even though a child or children were not directly involved or present at the time of the offences.
The non-serious offences show a level of dishonesty and a disregard for the law which is concerning. In this context, I accept the submissions of Blue Card Services that it is important for a person who cares for children to present a positive role model and conduct themselves in a manner that shows a respect for the law.[13]
[13]See also IHI v Director General of Justice and Attorney General [2021] QCAT 206, [84].
As befits its statutory treatment, the serious offence that TCD has been convicted of and the context in which it took place, is of specific relevance to TCD undertaking employment that may involve children.
As to whether TCD’s position is exceptional, her offending needs to be considered in the context of the totality of the evidence taking into account matters such as TCD’s insight into her offending, her conduct both prior to and subsequent to her convictions and whether she has in place appropriate safeguards to prevent reoffending.
Other matters
The evidence shows that TCD had a difficult childhood and adolescence. She spent a significant part of her childhood in foster care. Indeed, TCD’s evidence is that her parents were dealers in, and users of, illegal drugs. Her adolescence was also far from settled and TCD’s evidence is that she spent some time in a youth refuge. TCD became pregnant when she was fifteen and had the first of her five children when she was sixteen.
The judge sentencing TCD for her serious offence said, with what seems to be some degree of understatement, that ‘She obviously did not have an easy early life …’[14]
[14]Sentencing remarks at Exhibit 1 at BCS 51.
At the time of her offending in 2015 TCD was 23 years old. Her evidence is that she was in a relationship the father of her children and her unborn child. TCD said in her evidence that this relationship was marked by some domestic violence. Further, it is TCD’s evidence that she was forced into attempting to smuggle drugs into the correctional centre, where her partner was incarcerated, by an unknown person who had threatened her and her children with physical violence.
These matters go some way to give context to her offending. In particular, with respect to her serious offence. However, whilst these factors may be explanatory, they are not, by themselves, exceptional. As submitted by Blue Card Services TCD’s offending does raise questions about her respect of the law and the wellbeing of others together with her ability to provide a protective environment and a positive role model for children.
What does the evidence show as to TCD’s circumstances and conduct since her offending in 2015? In considering this question it is necessary to examine whether or not TCD has demonstrated insight into her past conduct so that the risks associated with that conduct has been reduced and any triggers to reoffending recognised and addressed.
It is now some eight years since TCD’s offending. In that time there is no evidence before the Tribunal of any recidivism. However, as submitted by Blue Card Services, the mere passage of time without reoffending is not, of itself, conclusive that the risk of harm to children is reduced should TCD be issued with a working with children clearance.[15] I do not consider that the time since TCD’s offending, by itself, is sufficient to displace what is, in effect, a statutory presumption against the issue of a working with children clearance to her.
[15]See Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 (Lister No 2), [55].
It is thus necessary to look at other matters to see if TCD position is exceptional. On the basis of her oral evidence, I consider that TCD does have insight into offending conduct and is genuinely remorseful.
Further, following an incident of domestic violence in 2018, TCD terminated her relationship with her former partner and sought and obtained a domestic violence order in which that person was named as the respondent. Since then, TCD has moved to Queensland. TCD gave evidence that she is now in a stable and supportive domestic relationship. She is therefore some distance, in both time and place, from the circumstances, in which she committed her offences. That is, she is not in the milieu that gave rise to her offending.
Her employment history since moving to Queensland is also encouraging, as is the further training she has undertaken. On her evidence, and on the evidence of her witnesses, TCD has been able to balance fulltime employment, or close to fulltime employment, with her responsibilities as a parent.
In relation to other factors relevant to my decision, the evidence is that before she moved to Queensland, TCD had come to the attention of the New South Wales Department of Family and Community Services (the Department). On several occasions between 2010 and 2017 concerns had been raised about TCD’s ability to act protectively toward her children. TCD was questioned about these matters at the hearing and whilst she disputed certain aspects of the reports that had been prepared by the Department, what is apparent is that no action was taken by the Department. There was no evidence before the Tribunal of concerns being raised by the counterpart Queensland Department.
Human Rights Act
There are, in this matter, several competing human rights relevant to the outcome of this application. For TCD the human rights include her right to privacy and reputation[16] and her right to take part in public life.[17] 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.[18]
[16]HRA s 25.
[17]HRA s 23.
[18]HRA s 26.
Conclusion
As stated, the paramount consideration for my decision is the welfare and best interests of children. Ultimately my determination is a matter of discretion having regard to all matters relevant to this decision.[19] On considering all the material before the Tribunal, I have narrowly come to the view that TCD’s case is exceptional.
[19]Lister No 2, [16].
Order
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.
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