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

Case [2020] QCAT 506

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL   


CITATION:

VDG v Director-General, Department of Justice and Attorney-General [2020] QCAT 506
PARTIES: VDG

(applicant)

v
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML388-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

15 December 2020

HEARING DATE:

3 August 2020

HEARD AT:

Brisbane

DECISION OF:

Member Kent
ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General that VDG’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 replaced with the tribunal’s decision that this is not an exceptional case.

2.   The Tribunal   prohibits the publication of the names of the Applicant and any non-expert witnesses.
CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – whether exceptional case

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 169, s 221, s 225, s 353,
s 354, s 358

Baker v The Queen (2004) 223 CLR 513
Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492
D and Department for Community Development [2007] WASAT 154
Re FAA [2006] QCST 15
R v Kelly [2001] 1 QB 198
RPG v Public Safety Business Agency [2016] QCAT 331
GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113

APPEARANCES & REPRESENTATION:

Applicant:

G Del Villar QC, instructed by J Feng ,solicitor

Respondent:

N Rajapakse

REASONS FOR DECISION

  1. This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General (hereafter ‘Blue Card’), made on, to issue a negative notice.

  2. VDG had applied for a Blue Card based on it being a requirement for the university course he is enrolled in.

  3. As part of their application processing Blue Card Services undertook a criminal history check in relation to VDG. This check disclosed the following criminal history: Film person’s private parts without consent x 1.

    On 1 February 2017 at the Downing Centre Local Court in New South Wales the applicant entered a plea of guilty to the charge referred to in the above paragraph. The applicant was placed on a bond for 18 months with conditions requiring him to continue to accept treatment from a doctor or a psychiatrist including attending appointments as directed and accepting recommended treatment.

  4. In New South Wales this offence is classified as a disqualifying offence under schedule 2 of the Child Protection (Working with Children) Act 2012 (NSW). A comparable offence in Queensland would be observations or recordings in breach of privacy under section 227A(2) of the Queensland Criminal Code. The Queensland equivalent offence is not classified as a serious or disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’ or ‘Working with Children Act’).

  5. Post his conviction…

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Details
AGLC
VDG v Director-General, Department of Justice and Attorney-General [2020] QCAT 506
Case
[2020] QCAT 506
Decision Date

CaseChat Overview and Summary

VDG sought to overturn the decision of the Director-General, Department of Justice and Attorney-General, who refused to issue him with a Blue Card. The applicant needed a Blue Card to continue his enrolment in his current university course. The refusal was based on the applicant’s criminal history, including a conviction for taking photographs of women's legs under their dresses in 2013. The matter was determined in the Queensland Civil and Administrative Tribunal (QCAT). The central legal issue was whether the applicant’s case constituted an ‘exceptional case’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld), warranting an exemption from the general prohibition against Blue Card issuance. The applicant argued that the legislation was intended to protect children from harm and that his criminal history, while concerning, did not necessarily render him unfit for work with children. The tribunal considered the purpose of the Act and the nature of the applicant’s offending behaviour. The tribunal concluded that the applicant’s conduct, though concerning, did not rise to the level of an ‘exceptional case’. The tribunal emphasised that the legislation was designed to protect children, not to impose additional punishment on individuals with criminal histories. The tribunal found that the applicant’s criminal conduct, while serious, did not demonstrate a current risk to children, particularly given his remorse and efforts to address his behaviour.

The tribunal set aside the Director-General’s decision and ruled that the applicant’s case was not exceptional. The tribunal also prohibited the publication of the applicant’s and any non-expert witnesses’ names to protect their privacy.

Orders

Orders of the court

1. The decision of the Director-General, Department of Justice and Attorney-General that VDG’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 replaced with the tribunal’s decision that this is not an exceptional case.

2. The Tribunal prohibits the publication of the names of the Applicant and any non-expert witnesses.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The application of the Act is intended to put boundaries around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8] [8]Re FAA [2006] QCST 15, [29], citing the second reading speech of the Commissioner for Young Children and Young People Bill, p 4391.The applicant’s evidence and submissions VDG’s evidence was written and oral. He was required to hold a Blue Card to continue his enrolment in his current university course. The applicant provided submissions to Blue Card in February 2019, May 2019 and June 2019. His application for a Blue Card was refused on 20 September 2019.Background The applicant was born overseas, and his parents separated when he was very young. He described having no memory of his father. VDG’s mother moved to Australia when he was seven and he remained in the care of his grandparents in his country of origin. He then moved to Australia at age 11 to live with his mother and stepfather. His mother had separated from his stepfather when he was 15. He described having a difficult relationship with his mother due to her high expectations of him. The applicant said that he loved his mother greatly and believed that that she had worked very hard for his sake, however she in turn put very high expectations on him. In 2013 he says his mother's health had deteriorated and this caused him a great deal of stress. Around this time his grandfather, who raised him from the ages of seven to 11, died suddenly. VDG was shocked and devastated. He travelled back to his country of origin for the funeral and when he got back to Australia he had fallen behind in his activities. In hindsight he now sees that his grandfather’s death had a long-lasting impact on him. Events leading to his offending As his grades fell after his grandfather’s death, his mother’s response was to tell him that he needed to keep studying and pushing harder. He said his grades eventually lifted but he started turning to thrill seeking activities e.g. if there was a pen provided to fill out a form, he would take it instead of giving it back. VDG admitted taking a picture with his mobile phone of a woman walking in the street. He said it gave him an adrenaline rush as he knew his mother would not approve. He continued to take pictures of women with his phone. He said after he took these photographs, he never looked at them again. The applicant said that originally, he felt that he was not doing any harm, he was just getting little rush each time he took a picture. In the final year of his first degree, at the end of his exams, he felt his pressure increasing as he wanted to undertake an honours year, he had a part time job at a shopping centre in Sydney and he also had a girlfriend. This person remains his girlfriend to this date and gave evidence at the hearing. The applicant stated that on the day of the offence he saw a woman bend over and “her skirt lift up quite high” and he put his phone under her dress and took pictures. He was reported to security and taken to the police. He said it was only then did he realise how harmful his actions were. The applicant did not request a lawyer and made admissions to the police. The police confiscated his phone and found other photographs of women's legs, some close and some from a distance. There were also pornographic images on his phone that he had downloaded or received from friends. His evidence indicated that all these photographs were young women and not girls.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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