AVJ v Director General, Department of Justice and Attorney General [2023] QCAT 267

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AVJ v Director General, Department of Justice and Attorney General [2023] QCAT 267 PARTIES: AVJ (applicant) v DIRECTOR- GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY- GENERAL (respondent) APPLICATION NO/S: CML506-20 MATTER TYPE: General administrative review matters DELIVERED ON: 3 July 2023 HEARING DATE: 22 February 2023 HEARD AT: Brisbane DECISION OF: Member Matthews ORDERS: 1. That the decision of the Director General, Department of Justice and Attorney General that AVJ’s case is exceptional within the meaning of s 221(2) of the Working with Children (risk management and Screening) Act 2000 is set aside and replaced with the Tribunal’s decision that there is no exceptional case. CATCHWORDS: CHILD WELFARE – APPLICATION FOR REMOVAL OF NEGATIVE NOTICE – IS THE CASE EXCEPTIONAL – REVIEW OF DECISION OF BLUE CARD SERVICES – whether applicant represents a risk of harm to children – whether protective factors outweigh risk factors. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 20, s 21, s 24 Working with Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 226 (2), s 360 Commissioner for Children and Young People and Children Guardian v Maker & Anor [2004] QCA 492, Commissioner for Children and Young people and Child Guardian v Lister (No2) QCATA 87, Grindrod v Chief Executive officer, Department for Community Development [2008] WASCA 289 -- 1 of 8 -- 2 APPEARANCES & REPRESENTATION: Applicant: McDonald, J – instructed by Sipley Lawyers - Applicant Respondent: Sanders, A - Respondent REASONS FOR DECISION Background [1] The applicant, AVJ, applied for a working with children clearance (‘Blue Card’) on 14 October 2019 pursuant to the Working with Children (Risk Management and Risk Screening) Act 2000 (Qld) (“WWC Act”). [2] On 18 March 2020, the respondent advised AVJ by way of written correspondence they afford him an opportunity to make submissions pertaining to his criminal history and why a negative notice should not be issued. [3] The applicant provided reply on 14 April 2020, and further submissions on 19 May 2020 addressing his criminal history, insight into his offending, the relevance of his past offending to his employment, and amongst other things, preventative strategies. [4] After assessing AVJ’s eligibility, Blue card issued him with a negative notice and their reasons document which indicated that following receipt and consideration of the submissions provided, that they were satisfied that an exceptional case exists. This letter was dated 19 October 2020. [5] AVJ filed an application to the Tribunal to review the respondent’s decision on 30 November 2020. [6] A two day hearing was heard on 22 February 2023 (part heard) and 1 March 2023. [7] Following the hearing directions were provided to the parties regarding the filing of post hearing submissions which were complied by both parties. The decision was reserved, not before 10 March 2023. The law and legislative framework [8] Pursuant to the QCAT Act, the purpose of the Tribunal in its review jurisdiction is to make the correct and preferable decision by standing in the shoes of the decision maker.1 [9] This is based on a fresh hearing on the merits2 whilst having regard to both the Working with Children (Risk Management and Screening) Act 2000 (“WCC Act”) and the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). [10] Pursuant to section 24 of the QCAT Act, the tribunal may confirm or amend the decision under review; set aside the decision and substitute its own decision and return the matter to for reconsideration to the decision maker with any necessary directions the tribunal considers appropriate. 1 QCAT Act Section 20(1). 2 Ibid s 20(2). -- 2 of 8 -- 3 [11] The paramount principle when considering and determining child related employment decisions is the welfare and best interests of children which is a paramount3 consideration “to which all others yield.”4 [12] The regime of the Working with Children Act is to ensure protective scaffolding is placed around employment criteria for all people who wish to work with and or around children, or put simply to screen persons, who work, or wish to work with children to ensure that they are suitable to do so.5 [13] The paramount principle is considered to inform the standard of proof required in employment related decisions, namely, the test in Briginshaw, Therefore, the tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of consequences involved for children, that there is an exceptional case. [14] Therefore, any hardship or prejudice the applicant may suffer if not successful in obtaining a blue card is of no relevance.6 Background [15] AVJ is currently 35 years old, newly married and the father to one child at the time of the hearing but is expecting twins in July. [16] AVJ is self-employed and employs 4 employees within his air conditioning and refrigeration business. [17] AVJ has a protracted offending history which occurred in his youth commencing when he was 18 years old in 2005 with the last recorded offence occurring in 2014. At the time of the hearing, there had been no recorded offences for over 8 years. [18] The offences contain convictions for an array of offences ranging from unlawful entry of a motor vehicle, possession of dangerous drugs, commit public nuisance, enter premise with intent, common assaults, trespass and wilful damage, some 25 charges in total showing that the applicant had a propensity throughout 2005-August 2014 of dishonesty and unlawful conduct, drug and substance use, a propensity for violence, non compliance to directions, and a disregard for the law. [19] Whilst these offences are neither serious offence, nor disqualifying offences under the WWC Act7 it is clear that legislative intention is that all offences on a person’s criminal history should be considered when determining eligibility to work with Children.8 Filed proceeding materials. Applicant: [20] The applicant filed and relied upon the following: (a) Application to review a decision, and miscellaneous applications dated 13 November 2022 including written submissions; 3 S360 WWC Act 4 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. 5 Section 5 (b) Working with Children (Risk management and Screening) Act 2000. 6 Grindrod v Chief Executive Officer, Department for Community Development [2008] WASCA 289 at [109] 7 Schedule 2 and 4. 8 Explanatory notes to the Commissioner for Children and Young People Bill 2000 at page 11. -- 3 of 8 -- 4 (b) A life story dated 26 March 2021 and supplementary life story dated 21 June 2021; (c) A Psychological assessment report of Professor F dated 30 November 2020; (d) Affidavit of the applicant dated 9 December 2021 with annexed documentation and correspondence from Williamson and Associates to Blue card services dated 4 March 2022, the applicant’s marriage certificate, ASIC company search and the birth certificate of the Applicant’s child; (e) Additional affidavit of the applicant dated 28 April 2022; (f) Reference from HT dated 5 February 2023; and (g) Reference from FA dated 17 February 2023. Respondent BCS [21] The respondent relied upon a bundle of document marked 1-96. This bundle of documents included the reasons document and negative notice issued to the applicant, the applicant’s criminal history and police and sentencing reports in relation to the applicants offending. [22] Additionally, both parties relied upon written and oral submissions provided throughout the hearing and thereafter in accordance with the directions of the Tribunal. [23] All documents have been considered in reaching this decision including all oral submissions and testimony given throughout the hearing. The reviewable decision [24] The decision under review is whether AVJ’s case is an “exceptional case.” [25] Given the applicant has been convicted for numerous offences, the Tribunal must have regard to the prescribed considerations set out in the WWC Act when determining whether an exceptional case exists.9 [26] The term exceptional case is not defined under the WWC Act but is rather a question of fact and degree to be decided incrementally on a case by case basis underpinned by the legislative framework and involves the exercise of a broad discretion. [27] When considering whether an exceptional case exists, consideration was given to the paramount principle, the mandatory factors set out in sections 226 (2) of the WWC Act which is not an exhaustive list, but rather they “merely contain particular matters which the tribunal is obliged to consider in deciding the application10” [28] Application of the Human Rights was also considered, namely, as a public entity, it is unlawful for the Tribunal (public entity): (a) to act to make a decision in a way that is not compatible with Human Rights; or 9 S226 (2) WWC Act 10 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 -- 4 of 8 -- 5 (b) in making a decision, fail to give proper consideration to a human right relevant to the decision, in these circumstances, section 26(2) specifically the right of every child to “the protection that is needed by a child, and is in the child’s best interests, because of being a child” [29] In reaching this decision, I have considered all the relevant factors under the Act, and all relevant information on hand to determine if this is an exceptional case. [30] Further, the tribunal is fully aware of the transferability of the blue card and consideration was given accordingly in this regard when reaching this decision, that AVJ would have unfettered access to children and would be allowed to work unsupervised with and around children without restriction if reissued a blue card. Oral Testimonies Expert evidence- Professor Freeman [31] Professor Freeman confirmed that he had a consultation with the applicant to furnish a report. The report opined that the applicant had continually accepted responsibility for his past behaviours, expressed remorse and regret and was able to identify underlying causes of offending. [32] Professor Freeman considers that the applicant presented at the consultation with insight and remorse. [33] Professor F maintained his professional opinion, that regardless, of the Respondent’s claims that significant details were not disclosed to him during the consultation that he considers the applicant to be low risk of reoffending which was formed through absence of recent court outcomes and measures of his lifestyle. [34] Professor F agreed that there is always some degree of self-reporting bias during assessments, which can be either deliberate or conscience and if present, it is a person’s actions, rather than what they say that is the best indicator of risk. [35] Professor Freeman considered AVJ to be consistently displaying stability, and there was no disparity between what he said, and what he is doing. He considered AVJ to be credible. [36] Professor F spoke to the applicant’s maturation progress, that the applicant is now married, has future progression and that he considers that he is in a different stage of his life unhindered by any substance abuse issues. [37] When asked how he formed the opinion that there were no current issues with substance abuse, Professor Freeman opined that there would be a disparity, and it was considered by Professor Freeman that there was not. [38] Professor F opined that the triggers when explored relating to past abuse and anti- social behaviours they were due to age, associating with the wrong crowd, he was at stage in his life where he was angry and disappointed which were present in part due to his mother’s cancer diagnosis. [39] Professor F considers that AVJ is not a risk to children as he has no disposition to harm a child, historically he was a young man who engaged in impulsive behaviours, but has sustained from those behaviours, again sighting the maturation progress to support this opinion, and considered that there was no further assessment needed due to his behaviour changes. -- 5 of 8 -- 6 [40] The tribunal has no reason to consider that the expert opinion of Professor F is not credible. The tribunal considers that Professor F was credible and absent any other expert report to the contrary gives weight to his testimony and report accordingly. HT [41] HT has known the applicant since a child. HT is the aunt of the applicant and works for him in his business as a bookkeeper. [42] HT supports the applicant but was not fully informed of all his past offending until providing testimony but was aware of the person he was in his youth, albeit by his parents’ accounts. [43] HT contends that AVJ is not a risk to children, he is a generous person and that she considers that he is a different person now, describing him as loving father who is the same with his nephew, and a generous person who contributes to his community. [44] The tribunal found her to be a credible and reliable witness. FA [45] FA has known the applicant since primary school, but by their late teens had lost contact. They re-established a friendship when FA returned to Brisbane around 2016. [46] They have re-established contact where they speak twice a week by phone and meet at coffee shops when able. [47] FA was provided the reasons documents and provided his account of what he knew about the applicants past offending including the Kingscliff incident but was not entirely sure about the full details. [48] FA confirmed in his testimony he was aware of AVJ’s past substance use and has saw nothing to believe that there is currently any use. [49] He considers the applicant to be a natural, run of the mill father. [50] FA does not consider the applicant to be a risk and supports him in his application. [51] The tribunal found FA to a credible and honest witness. AVJ [52] The applicant was questioned in depth as to his prior criminal offences and charges. AVJ was candid and remained composed throughout. [53] AVJ spoke of his youth, and the troubling times he had, and the triggers with led to those behaviours. AVJ stated in the past he had issues with conflict resolution, was susceptible to peer pressure and had a tendency for impulsive behaviours, but he has since severed those associations and is no longer susceptible to peer pressure. [54] When asked how, AVJ stated: “that life lessons teach you to be a better person, to say enough is enough, and to move on” and that experiences make you change- I cannot explain it, but you realise it needs to change, and to not go down that path again. [55] Regarding substance use, AVJ confirmed he did use Amphetamines, and marijuana in a social setting which commenced when he was injured (dislocated knee) towards the end of high school as sport was no longer his priority. -- 6 of 8 -- 7 [56] He confirmed that in his youth pot use was a bit more prevalent, and he used weekly, and on his own, but it has been a long time since his last use. [57] When asked about the triggers to stop, AVJ states that “it was mental clarity and motivation as pot can make you lazy, but he was able to stop on his own.” [58] In relation to his criminal offences and history, he confirmed that those happened, including the Kingscliff incident in December 2010. AVJ indicated that when the incident occurred, he was not sure what he was hoping to illicit, but stated: “I don’t know what I was thinking, I was intoxicated, and they were harassing my partner at the time” but if it happened today, “I would change those behaviours, you can’t take matters into your own hands” and agreed that he lost control, and that he had prioritised his interests over the victims, it was violent. He was 23 years old at the time of the incident. [59] In reflection of those matters after, the tribunal considers that the applicant provided insight, he realised, “it was disgusting, I thought, what have I done,” I have done the wrong thing. [60] The testimony provided by AVJ the tribunal considers was upfront and honest. He candidly provided his account to the best of his recollections with insight, and remorse. The tribunal considers that AVJ understood the seriousness of his past offences, his behaviours, and the impact his actions had on others. [61] Discussions and explanations about discrepancies in his life story and his alleged attendance at counselling were addressed and accounting for in his testimony. [62] The applicant addressed those discrepancies and by way of testimony and did not deny he had not attended. The tribunal does not consider that the applicant was in anyway trying to mislead the tribunal. [63] Underlying concerns of the respondent: (a) The respondent submits that the applicant’s offending is relevant to, and adversely affects his eligibility to work with children. The applicant’s drug related offences raise questions about his ability to provide children with a protective environment, because those who engage with drug related activities, are impaired in their ability to promote and protect the best interests of children. (b) The tribunal considers that AVJ has demonstrated insight into his offending, and there is nothing before the tribunal to indicate that the applicant uses drugs today and has not abstained as testified. He presented as calm and collected throughout the hearing, there is nothing before the tribunal to indicate that he does not have stable mental health. Further, the tribunal accepts the opinions of Professor F, and his report that indicates that AVJ does not display underlying deviant ideation or personality pathologies. (c) The applicant’s ability to exercise restraint, self-control and judge appropriate behaviours due to the applicant's history property and anti-social offending. (d) The applicant has not reoffended in almost 9 years. In acknowledging this, the tribunal also acknowledges the decision of Lister, that the effluxion of time is not of itself an answer to the question of risk, but rather, whether the applicant -- 7 of 8 -- 8 has genuine insight into their behaviour.11 The tribunal is satisfied that the applicant has addressed and acknowledges the triggers and stressors that led to that past offending which demonstrate to the tribunal that if faced with those triggers again, the applicant has the requisite maturity and growth to act accordingly. The Applicant’s life trajectory has changed considerably, including a change in social circles, his marriage and becoming a father, and by the testimony provided to the tribunal that AVJ actively participates in his community positively. (e) The applicant’s offending raises’ questions about the applicant’s ability to prioritise the rights, interests, and wellbeing of others, especially when coupled with the applicants past disregard for the law. The respondent cited the decision of IHI where it was held that “any child being cared for by a person has a right to have someone who has respect for the law.” (f) The tribunal considers that in the past 9 years the applicant has demonstrated a changed regard to the law and compliance with it. The applicant has no offending and has satisfied the tribunal that the life he led in his 20’s is in direct contrast to his current lifestyle. The tribunal considers and gives regard to what AVJ has done in the past 8 years throughout the period of non-offending which include, gaining work skills and starting a business, he has built and retained solid relationships resulting in marriage and starting a family and that AVJ has made a genuine and conscientious effort to change and remain changed. [64] Therefore, the tribunal is satisfied that the applicant has demonstrated insight and remorse, and over the passage of the last 8 years has matured. [65] The tribunal is satisfied that the absence of any current offending and substance use demonstrates that the applicant has identified and manages the triggers and stressors in his life that led to his past anti-social behaviour and offending and has adequate strategies in place to ensure that those behaviours do not present again. [66] The tribunal is satisfied that the applicant now has a loving, stable, and supportive family and social network which was not present during his time of past offending including positive involvement in his community. ORDERS [67] That the decision of the Director General, Department of Justice and Attorney General that AVJ’s case is exceptional within the meaning of s 221 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 no exceptional case. 11 Commissioner for Children and Young People and Child Guardian v Lister (No 2) QCATA 87. -- 8 of 8 --