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TWE v Director-General, Department of Justice and Attorney-General

TWE v Director-General, Department of Justice and Attorney-General

Case [2021] QCAT 121 8 April 2021

Jurisdiction

Best Interests of Children

Human Rights Act 2019 (Qld)

Family Law

Children matters under State or Territory Jurisdiction and Legislation

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

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

PARTIES: TWE

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML064-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

8 April 2021

HEARING DATE:

4 December 2020

HEARD AT:

Ipswich

DECISION OF:

Member Hemingway

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General 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 confirmed.

2. Publication of the names or identifying information of TWE or any person associated with her other than parties to the proceedings is prohibited pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - OTHER MATTERS - where applicant seeks a review of decision to issue a negative notice and cancel blue card-where applicant has a criminal history without any serious or disqualifying offences-where the charged offences involved supply of dangerous drugs -whether exceptional circumstances exist-whether it is in the best interests of children to issue a positive notice.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 66, s 19
Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 167, s 221, s 226

Human Rights Act 2019 (Qld) s 8, s 58, s 31

Commissioner for Children and Young People and Child Guardian v Maher &Anor [2004] QCA 492

Re TAA [2006] QCST 11
Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES & REPRESENTATION:

Applicant:

A Dara; Aboriginal and Torres Strait Islander Legal Service

Respondent:

N. Rajapakse; in house government legal officer of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

Background

This is an application for review of a decision by the Director-General (the chief executive officer), Department of Justice and Attorney-General (‘the Respondent’) that the case of TWE (‘the Applicant’) is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
The Applicant held a blue card for the periods 2010 to 2013 and 2017 to 2018. She is an indigenous person aged 46 who is the mother of three children and seeks a blue card to continue her work in child-related employment.
The Applicant was convicted on 12 November 2018 in the Magistrates Court at Ipswich of numerous charges of the supply of a dangerous drug.
The Respondent wrote to the Applicant on 12…

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

CaseChat Overview and Summary

This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General that the case of TWE, the Applicant, is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). The Applicant sought a blue card to continue her work in child-related employment. The issue for determination was whether an exceptional case exists. The Tribunal found that the Applicant had not developed sufficient insight into the effects of her drug-related conduct upon friends, family and children, including her own children; that the Tribunal did not accept the continuing assertion of the Applicant that her children knew nothing of her drug-related activity; that the Applicant continues to deny a direct connection between her secret and illegal conduct and the welfare generally of children; and that the Applicant has expressed partial remorse for her actions but not sufficient to establish that hers is not an exceptional case. The Tribunal is satisfied that the Human Rights Act 2019 (Qld) has been complied with and that it has given proper consideration to human rights relevant to the decision, acted and made this decision in a way compatible with human rights, and in making the decision the Tribunal must act reasonably in the face of a statutory provision such as that containing the paramount principle. The Tribunal finds that this is an exceptional case. The Tribunal’s findings conclude that a finding that the case is not exceptional is inconsistent with the paramount principle. The Tribunal finds that this is an exceptional case based on the actions of the Applicant and her continuing beliefs which demonstrate an absence of insight and clearly show a lack of understanding, empathy and compassion for children. Children have a right to be protected from exposure to drug involvement and to be cared for by people who are not using drugs that may impair their ability to promote and protect children’s best interests.

Orders