DMW v Director-General, Department of Justice and Attorney-General [2024] QCAT 238

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DMW v Director-General, Department of Justice and Attorney-General [2024] QCAT 238 PARTIES: DMW (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML059-22 MATTER TYPE: Childrens matters DELIVERED ON: 4 June 2024 HEARING DATE: 18 October 2023 HEARD AT: Brisbane DECISION OF: Member Davies 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 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to refuse an application to cancel 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 a negative notice – where applicant has a conviction – where the offence was not a serious or a disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where there is other information reasonably believed to be relevant to deciding whether there is an exceptional case – decision that applicant’s case is ‘exceptional’ is upheld Human Rights Act 2019 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 9 -- 2 Working with Children (Risk Management and Screening) Act 2000 (Qld) Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 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 DVL v Director-General, Department of Justice and Attorney-General [2023] QCATA 52 Director-General, Department of Justice and Attorney- General v CMH [2021] QCATA 6 Johnston v Carroll [2024] QSC 2 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: C A Davis, Legal Officer, Department of Justice and Attorney-General REASONS FOR DECISION Introduction [1] The Applicant (‘DMW’) has applied for a review of a decision made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). [2] The decision under review was made by the Director of Blue Card Services screening services (‘Decision Maker’) in January 2022. That decision was to cancel DMW’s working with children clearance and to issue her with a negative notice (‘Negative Notice Decision’). [3] The background to the cancellation decision is, in summary, that in May 2019 DMW applied for and was issued with a working with children clearance. Just over a year and a half later, in December 2020, the Decision Maker became aware of a change in DMW’s police information. Specifically, that DMW had been charged with the offence of unlawful stalking. The date of the alleged offence was 11 January 2020. [4] This change in DMW’s police information caused the Decision Maker to reassess DMW’s eligibility to hold a blue card. As a result of this reassessment process the Decision Maker issued the Negative Notice Decision. The reasons for that decision were rendered into a document entitled ‘Reasons for the decision to issue a negative notice’ dated 14 January 2022 (‘Reasons document’).1 [5] DMW’s application to review the Negative Notice Decision is dated 31 January 2022 and was received by the Tribunal in February 2022. The respondent to this application is the Director General, Department of Justice and Attorney-General. In these reasons the respondent will be referred to as Blue Card Services. 1 The Reasons document forms part of Exhibit 1. -- 2 of 9 -- 3 [6] In her QCAT application form2 DMW asserts that the Negative Notice Decision was made ‘on wrong and incomplete information’. Further, DMW states that the ‘Matter is still being investigated and progressing through the courts’ together with the seemingly inconsistent statement that ‘My charge has been dropped’.3 [7] The hearing of this application was conducted on the basis that, although she was charged with unlawful stalking, that proceeding was discontinued.4 In its pre-hearing written submissions Blue Card Services agree that the Applicant’s charge of unlawful stalking was discontinued with the prosecuting authority entering a no true bill in respect of the charge’.5 Legislative framework and role of Tribunal [8] The principal legislative enactments relevant to a review by this Tribunal of the Negative Notice Decision are the WWC Act – under which the Negative Notice Decision was made – and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) under which the Tribunal exercises its review jurisdiction. [9] The object of the WWC Act is to 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.6 [10] The Negative Notice Decision is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act. [11] The purpose of a review by this Tribunal of the Negative Notice Decision is to produce the correct and preferable decision.7 In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.8 That is to say, this Tribunal must come to a decision on the evidence before it. [12] Further, in deciding this matter, this Tribunal has all the functions of the Decision Maker. So, in coming to a decision, this Tribunal is guided by the principles set out in the WWC Act. [13] 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.9 [14] The WWC Act provides, as a starting point, that a person in the position of DMW should be allowed to hold a Blue Card unless that person’s situation is an exceptional case. An exceptional case is one where the decision maker is satisfied that it would not be in the best interests of children for the applicant to be issued with a working with children clearance.10 2 DMW’s Application to Review a Decision (Form 23). 3 Ibid Part C of the Form 23 on page 5 of 6. 4 That is the position as set out in the National Police Check Results current as of 15 March 2022 (exhibit 1 at BCS-12). 5 Exhibit 5 at paragraph 7. This submission is supported by the National Police Check Results current as at 15 March 2022 (exhibit 1 at BCS-12). 6 WWC Act, s 5. 7 QCAT Act, s 20(1). 8 QCAT Act, s 20(2). 9 WWC Act, ss 6, 360. 10 WWC Act, s 221(1), (2). -- 3 of 9 -- 4 [15] Thus, in conducting this review of the Negative Notice Decision, the ultimate issue for determination is whether an exceptional case exists. That is, whether DMW’s situation is such that it would not be in the best of children for a positive notice to be issued.11 [16] 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 what constitutes an exceptional case should be unhampered by any special meaning or interpretation.12 [17] In determining whether the Applicant’s circumstances constitute an exceptional case an appropriate framework for consideration of the material before the Tribunal is to consider: (a) The matters that the WWC Act mandates must be considered. (b) Any other matters that are relevant to the decision.13 This consideration must be conducted having regard to the principles for the administration of the WWC Act, summarised in [13] above, and any human rights relevant to the Tribunal’s determination. [18] With respect to human rights relevant to the decision, 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 imposes two obligations on the Tribunal. They are the substantive obligation14 not to make a decision in a way that is incompatible with human rights and the procedural obligation15 not to fail to give proper consideration to a relevant human right in making a decision.16 [19] The human rights that are relevant to the parties, in particular DMW, include the right to privacy and reputation17 and the right to a fair hearing.18 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 [20] Before considering the evidence before the Tribunal, two preliminary observations are apposite. Firstly, determination of whether an exceptional case exists can only be made after evaluating all the available evidence.19 In evaluating the evidence it must be recognised that the ‘ultimate question of what is in the best interests of children does not lend itself to exact proof. It involves consideration of how children might be 11 WWC Act, s 221(2). 12 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]- [35]. 13 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42]. 14 HRA, s 58(1)(a). 15 HRA, s 58(1)(b). 16 Johnston v Carroll [2024] QSC 2, [65]-[77]. 17 HRA, s 25. 18 HRA, s 31. 19 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19]. -- 4 of 9 -- 5 affected and a degree of speculation as to what might happen in the future and the potential future risks to children’.20 [21] Secondly, it should be emphasised that there was evidence before the Tribunal, in conducting a fresh hearing, that was not before the original decision maker at the time the Negative Notice Decision was made. [22] With this as background, what evidence was before the Tribunal? [23] DMW’s evidence consisted of a written statement,21 her oral evidence and the written statements, essentially character references, of a number of people who know her and were able to provide positive statements about her character.22 As to these character references, the authors of these documents were not required by BCS to give oral evidence in support of their written statements. [24] Blue Card Services put into evidence two sets of documents. The first of these was the Reasons document and related material 23 and secondly a set of documents produced pursuant to a Notice Produce issued by the Tribunal. This second category of documents consisted of copies of documents, with some redactions, obtained from the (Queensland) Department of Children, Youth Justice and Multicultural Affairs.24 [25] In addition, there were two videos from body cameras worn by members of the Queensland Police Service.25 These videos were recordings made on the day of the incident that gave rise to the unlawful stalking charge against the Applicant. That is, the charge which was finalised without a hearing. [26] An evaluation of the evidence before the Tribunal to determine if DMW’s case is exceptional is most appropriately conducted by considering the mandatory matters under s 226(2) and s 228(2) of the WWC Act together with a consideration of other information about DMW that this Tribunal reasonably believes is relevant to a consideration whether it would be in the best interests of children for her to be issued with a working with children clearance. Such an evaluation needs to be undertaken with the recognition that the principles for the administration of the WWC Act and the relevant provisions of the HRA condition the evaluation of all the evidence before the Tribunal. Discussion The s 226 and s 228 matters [27] The WWC Act, in ss 226 and 228, mandates that the Tribunal, as the decision maker, must consider certain matters in deciding whether or not there is an exceptional case. [28] In summary, s 226 applies where, as here, DMW has been convicted of or charged with an offence and s 228 applies where ‘other relevant information exists.’26 20 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [16]. 21 Exhibit 6. 22 Exhibits 7-12. 23 Exhibit 1 being a document consisting of 56 pages. 24 This Notice to Produce material, exhibit 2, was not before the Decision Maker at the time of the Negative Notice Decision. 25 Exhibits 4 and 5. 26 As to the version of the WWC Act that applies to this review, s 598 of the WWC Act provides that this Tribunal must apply that Act as in force from the commencement of any relevant amendment in relation to the subject matter of the review. -- 5 of 9 -- 6 [29] Turning first to the s 226 matters that are relevant to DMW’s application, there is no dispute that DMW has a conviction for the offence of ‘contravene direction or requirement’.27 Even though the Magistrate who heard the charge decided to order that no conviction be recorded, Schedule 7 (the dictionary) to the WWC Act provides that conviction means a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded. [30] The National Police Check Results Report also discloses a charge of ‘unlawful stalking’. The resolution of this charge, as disclosed by that Report, was that a no true bill was presented, and the proceedings were discontinued in February 2022. [31] During the hearing of this application an issue arose as to how the unlawful stalking charge should be treated. BCS, in both oral submissions and in post hearing written submissions, addressed this issue. The BCS position is that this finalised charge for a non-disqualifying offence is a ‘charge’ under the WWC Act and thus is a matter that must be considered under s 226. [32] However, in fulfillment of its obligation to assist the Tribunal,28 BCS referred to two decisions of the Appeal Tribunal that relate to the interpretation of the word ‘charge’ under the WWC Act. Those decisions were Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6 (‘CMH’) and DVL v Director- General, Department of Justice and Attorney-General [2023] QCATA 52 (‘DVL’). [33] In CMH the Appeal Tribunal determined that ‘charge’ for the purposes of s 221(1)(b)(iii) referred to a charge that was extant.29 The implication of this for the present application is that it could be asserted that, following CMH, a finalised charge under s 226 cannot be an extant charge and thus the unlawful stalking charge would not merit the mandatory consideration required by s 226(2). [34] In DVL, after a detailed analysis of CMH, the decision was followed by a Judicial Member sitting as the Appeal Tribunal.30 As a result of his analysis and considering the application of s 226(2), the Judicial Member determined that ‘charge’ in s 226(2)(iii) means the basis of a criminal proceeding which has not concluded. [35] However, as BCS submit, on 16 October 2023, DVL was set aside by the Court of Appeal by an order dated 16 October 2023 and the matter was returned to the Tribunal for reconsideration. The outcome of this reconsideration was not in evidence before the Tribunal. [36] With this as background, the relevant preliminary question for this Tribunal is – how should this Tribunal treat DMW’s finalised charge for unlawful stalking? Should it, along with the contravene direction or requirement conviction, be a matter that mandatory regard be given under s 226(2)? [37] CMH was decided on its facts and the relevant statutory regime in place at the time. Therefore, it cannot be said that either as matter of comity or binding precedent it should be followed unless the facts of this matter are essentially indistinguishable, and the statutory regime under which it was decided remains materially unaltered. 27 Exhibit 1, at BCS 12 sets out a National Police Check Results Report where this offence is disclosed. 28 QCAT Act, s21. 29 CMH at [28]. 30 DVL at [21]-[36]. -- 6 of 9 -- 7 [38] BCS maintains the position that DMW’s finalised unlawful stalking charge, although no longer extant, is a ‘charge’ for a non-disqualifying offence under the WWC Act. This position is adopted on the basis that CMH is distinguishable on two main bases and, further, that the comments of the Appeal Tribunal were obiter.31 [39] The bases that BCS submit support the contention that CMH can be distinguished are summarised as follows: (a) The strength of the evidence.32 Essentially, BCS submit that the behaviour that gave rise to the unlawful stalking charge is revealed by the ‘strong evidence’ of the police videos.33 (b) That the statutory framework under which CMH was decided has changed. That is the WWC Act has been amended to make it clear that Parliament intended all relevant information should be considered when assessing a person’s eligibility to hold a blue card.34 [40] I accept the submission that amendments to the WWC Act subsequent to the decision in CMH, being the amendments in the Child Protection Reform and Other Legislation Amendment Act 2022 (Qld) and the Disability Services and Other Legislation (Worker Screening) Amendment Act 2020 (Qld) make it clear that Parliament intended all relevant information should be considered when assessing a person’s eligibility to hold a blue card. [41] However, in the absence of a definitive pronouncement of the Appeal Tribunal or the Court of Appeal that charge under s 226 of the WWC Act (as it currently stands) comprehends a finalised charge, then I am of the view that the finalised charge of unlawful stalking is a not a matter that should be the subject of the mandatory considerations set out in s 226. [42] Nonetheless, I consider that the current wording of s 221(3)(f), s 228(1)(b)(iv) and s 228(2)(g) of the WWC Act allow me to consider the evidence relating to DMW’s finalised charge, including the video evidence, as other information relevant to my decision. [43] In view of what is set out above, the only offence to which s 226 relates is the contravention a direction or requirement conviction. This is neither a serious or disqualifying offence and DMW was convicted of this offence in 2021. The penalty was a fine of $100 and no conviction was recorded. This is a minor matter and, by itself, does not, in my view, render DMW’s case exceptional. [44] BCS in its submissions addresses what can be described as other information about DMW that is said to be relevant to deciding whether it would be in the best interests of children for her to be issued with a working with children clearance. BCS describe these as matters of concern. Those matters provide a convenient framework for a consideration of the evidence before the Tribunal. [45] The first of these matters is the evidence regarding the events on 11 January 2020 that gave rise to the finalised unlawful stalking charge. Although that charge was no longer extant at the time of the hearing of this application, I consider that the evidence before 31 BCS’ post hearing submissions dated 3 November 2023 at paragraphs 32-41. 32 BCS’ post-hearing written submissions at paragraph 37. 33 Exhibits 3 and 4. 34 BCS’ post-hearing written submissions at paragraph 38. -- 7 of 9 -- 8 the Tribunal, in particular DMW’s oral evidence and the police body worn videos, is ‘other information’ about DMW that is relevant to deciding whether it would be in the best interests of children for her to be issued with a working with children clearance. [46] It is not in dispute that members of the Queensland Police Service attended this incident. The incident occurred when DMW accompanied one of her sons, who was about 27 years old, to premises that had been occupied by that son and a young woman of about 19 years old. The evidence of DMW is that this young woman had been cohabiting with DMW’s son and was pregnant to him. DMW said in evidence that she drove to the premises as her son wanted to retrieve some of his possessions following a dispute with the young woman. This dispute between DMW’s son and the young woman involved allegations of domestic violence. Further, DMW gave evidence that both her son and the young woman were affected by the recent consumption of alcohol. [47] An issue that was the subject of significant evidence from DMW was her conduct during this incident. In particular, whether DMW parked in the car of another person effectively blocking the driveway and thus preventing the exit of the other car. [48] I find that DMW’s version of events, in particular that she was not blocking the driveway, was unconvincing in the light of the evidence of the videos from the police worn cameras. I further consider that DMW has failed to appreciate why and how her conduct was inappropriate. Specifically, when questioned about the incident by the representative of BCS, DMW steadfastly refused to make reasonable or appropriate concessions in relation to her conduct as recorded on the police body worn videos. [49] It is DMW’s lack of insight and stubborn refusal to concede obvious matters that I consider support a finding that her case is exceptional. Absent contrition and insight, I consider that there is a significant risk that DMW has failed to appreciate that her conduct was inappropriate. This casts doubt on her ability to judge appropriate behaviour. An inability to exercise sound judgement is not consistent with the best interest of any children that she may come into contact with. [50] DMW’s steadfast refusal to make appropriate concessions was also apparent when she was questioned about the decisions of Child Safety to remove five of her children from her care. The contemporaneous notes in the Child Safety officers paint a picture that DMW was aggressive, both physically and verbally toward Child Safety staff.35 The Notice to Produce material 36 suggests that Child Safety received 15 child protection notifications regarding DMW’s children eight of which resulted in substantiated outcomes. [51] Although the ultimate removal of her children from her care was over 20 years ago and it has been about 13 years since the last notification, it is not apparent to me, from DMW’s evidence, that she has reflected on the circumstances that gave rise to the significant step of removal. These circumstances included Child Safety coming to the view that her children were at risk of physical harm or potential sexual exploitation together with emotional and psychological harm as a result of the chronic state of neglect in the family home.37 35 Exhibit 2, the NTP material at NTP-161. 36 Exhibit 2. 37 Exhibit 2 at NTP-135. -- 8 of 9 -- 9 [52] DMW’s evidence did not persuade me that she has appropriate insight into her conduct that gave rise to the notifications to Child Safety and that the passage of time has not altered this position. [53] Given this and in the light of the paramount consideration of the best interests of the children I have come to the view that DMW’s case is exceptional within the meaning of s 221 of the WWC Act. [54] As a result the formal order that I make is that 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 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. [55] In coming to this decision, I have given consideration to the competing human rights relevant to this decision. To the extent that my decision places limits on DMW’s human rights I consider that the decision is justified by the factors set out in s 13 of the HRA. Further, I considered the statements DMW submitted in support of her application. These statements, although brief, highlighted what the authors considered to be DMW’s positive attributes including her interaction with children. DMW’s oral evidence revealed that the authors of these statements, with perhaps one exception, had not seen the Reasons document. As a result, the makers of most of the statements did not have sufficient context when preparing their statements. In the circumstances, these statements were of limited assistance. Non-publication order [56] The Tribunal has the power to make an order prohibiting the publication of certain information including information that may enable a person to be identified. A non- publication order may be made if the Tribunal considers that such an order is necessary in the interests of justice.38 Such an order was made by a direction of the Tribunal on 12 June 2023. Neither party contended that this order required amendment or modification. That order stands. 38 QCAT Act, s 66. -- 9 of 9 --