WH v Director General, Department of Justice and Attorney General - [2023] QCAT 377

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

WH V DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL [2023] QCAT 377

PARTIES:

WH

(applicant)

v

DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML008-22

MATTER TYPE:

Childrens matters

DELIVERED ON:

19 September 2023

HEARING DATE:

22 March 2023

HEARD AT:

Toowoomba

DECISION OF:

Member Hemingway

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General that WH’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 name or identifying information of the Applicant or any person associated with him, other than to the parties of the proceedings is prohibited pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – negative notice – where applicant has numerous complex charges and convictions for fraud and dishonesty over significant period of time – where applicant has finalised charges for weapons offences – where he was found not guilty – whether an exceptional case exists

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

Human Rights Act 2019 (Qld), s 8, s 13, s 26 s 58, s 31

Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [28]

Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171
Briginshaw v Briginshaw (1938) 60 CLR 336

SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252, [110]

Commissioner for Children and Young people and Child Guardian v Eales [2013] QCATA 303
Tollo v Chief Executive Office Public Safety Business Agency [2016] QCATA 13
WJ v Chief Executive Public Sector Business Agency (2015) QCATA 190
Re TAA [2006] QCST 11, [97]

Director General of Justice and Attorney General v CMH [2021] QCATA 6

APPEARANCES & REPRESENTATION:

Applicant:

WH self-represented

Respondent:

Ms L Hailstones Legal Officer Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

Background

The Applicant was issued with a working with children clearance on 5 June 2020. Blue Card Services were subsequently notified by the Queensland Police Service that the Applicant’s police information had changed. On 4 February 2021, Blue Card Services requested submissions from the Applicant as to why he should receive a working with children clearance. The Applicant’s eligibility was reassessed. He was advised by letter dated 30 March 2022 of the Reasons for the decision to refuse a working with children clearance. He applied to the Queensland Civil and Administrative Tribunal to review that decision on the 5 January 2022.
The Applicant has significant criminal history but no serious offences. After the issue of Reasons on behalf of the Director General Department of Justice and Attorney General, his outstanding charges relating to…

Details

AGLC: WH v Director General, Department of Justice and Attorney General [2023] QCAT 377
Case: [2023] QCAT 377
Decision Date

CaseChat Overview and Summary

In the matter of WH v Director General, Department of Justice and Attorney General, the applicant sought to overturn a decision that he was unsuitable to hold a Blue Card. The applicant had been convicted of fraud and other offences. The Tribunal considered various protective and qualified protective factors presented by the applicant, including his mental health support, family stability, and community involvement. The Tribunal examined the evidence provided by the applicant and concluded that, despite some exaggeration and embellishment, the applicant had taken steps to address his past behavior and reduce the risk of future offending.

The primary legal issue in this case was whether the applicant qualified as an exceptional case under the relevant legislation. The Tribunal had to evaluate all the evidence, apply the relevant legislation, and case law to determine if the applicant's circumstances constituted an exceptional case. The Tribunal also had to ensure that the applicant was afforded natural justice, procedural fairness, and that his human rights were preserved throughout the proceedings.

After considering the evidence, the Tribunal found that while the applicant had taken steps to address his past behavior and reduce the risk of future offending, it was not satisfied that he was no longer a risk to children. The Tribunal concluded that the applicant's past conduct, including his criminal history and fraudulent activities, demonstrated a significant risk to children, and therefore, he did not qualify as an exceptional case. The Tribunal's decision was based on the applicant's history of offending, lack of independent evidence to support some of his claims, and the potential risk he still posed to children.

The final orders of the Tribunal were that the application for review be dismissed, and the decision of the Director General that the applicant was unsuitable to hold a Blue Card be affirmed. The Tribunal found that the applicant had not demonstrated that he was an exceptional case and that his past conduct and criminal history posed a significant risk to children.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

He states that he has community contact through the Rural Fire Brigade and his Church Community.Consideration of the Evidence In his oral submissions to Blue Card services (paraphrased in these Reasons) the Applicant indicated the following matters which the Tribunal regards as protective or qualified protective factors: (a)After his offending he spoke to a doctor and was prescribed anti-depressants for a year;(b)He saw a psychologist for six months. He copes by using strategies learned from his psychologist, including breathing exercises and talking to his support network and journalling;(c)If he realises he cannot cope or is getting to that point, he reaches out for support; (d)He used to keep it bottled up as he did not want to stress his wife of family, but he knows not to do this anymore; (e)He is no longer medicated for depression, but still visits his doctor for his emotional help and pain management twice a month. This allows him to keep on top of everything; (f)He said Magistrate Baldwin acknowledged that this intentions were coming from a good place however his actions erased any positives he dealt with the situation the wrong way. He believes he was reactive, but knows he did the wrong things trying to help the family;(g)He stated there was media courage of his fraudulent offences which changed his life; (h)He knows not to do this anymore; (i)He identified his wife looks after the finances, he receives a stipend and will only take the credit card if he needs to get something specific. He volunteers but does not have a position of control where he has access to finance; (j)As a result, the family are in a better financial position with savings; (k)His daughter is recovered and has three children; (l)His youngest t daughter is out; (m)His eldest son is in the army and is a guidance counsellor; (n)He has three children living at home but has helped his children through their struggles and because of his own experiences. Whilst the Tribunal is not required to balance risk factors with protective factors in order to determine if an exceptional case exists, the Tribunal has considered the protective factors to which the Applicant refers.[34][34]Commissioner for Children and Young people and Child Guardian v Eales [2013] QCATA 303 (6)-(7). These are that he has a large extended family and that he has arranged his affairs so that he has no temptations to fraudulent activity. His wife handles the finances. He has a network of friends and associates and engages in voluntary community participation including that involving child such as scouts and driving the school bus. Despite the lack of independent evidence, the Tribunal is prepared to find that at least some of this it true though the Applicant displays a propensity to dramatize, embellish and exaggerate which has not diminished as he has aged. The Tribunal is required to determine whether an exceptional case exists after evaluating all the available evidence before it and applying relevant legislation and case law. The Tribunal must produce the correct and preferable decision. The rules of evidence do not apply but the Applicant must be given natural justice and procedural fairness. His human rights are preserved by the application of the HR Act to these proceedings.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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