FSE v Director General, Department of Justice and Attorney-General [2023] QCAT 265

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: FSE v Director General, Department of Justice and Attorney-General [2023] QCAT 265 PARTIES: FSE (applicant) v DIRECTOR-GENERAL DEPARTMENT OF JUSTICE AND ATORNEY- GENERAL (respondent) APPLICATION NO/S: CML094-21 MATTER TYPE: General administrative review matters DELIVERED ON: 28 June 2023 HEARING DATE: 1 December 2022 HEARD AT: Townsville DECISION OF: Member Pearce ORDERS: The decision of the Director-General, Department of Justice and Attorney General that the applicant’s case is “exceptional” within the meaning of s221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. CATCHWORDS: FAMILY LAW AND CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – Applicant prosecuted for a non-serious offence – whether the Applicant’s case is an ‘exceptional case’ Working With Children (Risk Management and Screening) Act 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Re TAA [2006] QCST 11 RPG v Public Safety Business Agency [2016] QCAT 331 -- 1 of 9 -- 2 APPEARANCES & REPRESENTATION: Applicant: FSE, Self represented Respondent: R Johnson, Advocacy Officer, Blue Card Services, representing the Director-General, Department of Justice and Attorney-General REASONS FOR DECISION Background [1] The applicant, FSE (“the applicant”) applied for a working with children clearance and blue card (“blue card”) under the Working with Children Act 2000 (Qld) (WWC Act). [2] The respondent proposed to issue the applicant with a negative notice and invited the applicant to make submissions about whether or not there is an exceptional case for the applicant. [3] On 30 June 2020 September 2020 the respondent issued a negative notice under the WWC Act. [4] On 25 March 2021, the applicant filed an application to the Queensland Civil and Administrative Tribunal (the Tribunal) to review the respondent’s decision. Legal Framework [5] As noted by Carmody J in RPG v Public Safety Business Agency1 the blue card regime seeks to ensure child safety by allowing only eligible adults to either work with, or care for, other people’s children, when undertaking what the Working with Children Act terms as ‘regulated employment’. [6] The blue card regime is administered by Blue Card Services. The major function of Blue Card Services is to engage in a screening process to determine who will be issued with a blue card, by means of a system of ‘positive’ and ‘negative’ notices.2 Those who obtain a positive notice may obtain a blue card as of right and may work with children. Those given a negative notice may not apply for, or start, or continue in, regulated employment.3 [7] Of particular relevance is section 221, which provides: (1) Subject to subsection (2), the chief executive must issue a positive notice to the person if- (a) the chief executive is not aware of any police information or disciplinary information about the person; or 1 [2016] QCAT 331, [8]-[19]. 2 WWC Act, s220. 3 WWC Act, s257. -- 2 of 9 -- 3 (b) the chief executive is not aware of a conviction of the person for any offence, but is aware that there is 1 or more of the following about the person- (i) investigative information; (ii) disciplinary information; (iii) a charge for an offence other than a disqualifying offence; (iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or (c) the chief executive is aware of a conviction of the person for an offence other than a serious offence. (2) If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. [8] In the particular context of ascertaining whether there is an exceptional case requiring the issue of a negative notice, the Working with Children Act mandates regard for the matters set out in s 226(2). Section 226(2) is not to be treated as an exhaustive list and does not expressly or impliedly confine the Tribunal to considering only those matters specified therein. Rather, the matters set out in s 226(2) are ‘merely certain particular matters which the [Tribunal] is obliged to consider in deciding the application’.4 [9] Section 226 provides: (1) This section applies if the chief executive- (a) is deciding whether or not there is an exceptional case for the person; and (b) is aware that the person has been convicted of, or charged with, an offence. (2) The chief executive must have regard to the following– (a) In relation to the commission, or alleged commission, of an offence by the person – (i) whether it is a conviction or a charge; and (ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and (iii) when the offence was committed or is alleged to have been committed; and (iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and (v) in the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the 4 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, (Philipp ides J). -- 3 of 9 -- 4 offence or not to make a disqualification order under section 357, the court’s reasons for its decision; (b) Any information about the person given to the chief executive under section 318 or 319; (c) Any report about the person’s mental health given to the chief executive under section 335; (d) Any information about the person given to the chief executive under section 337 or 338; (e) Anything else relating to the commission, or alleged commission, or the offence that the chief executive reasonably considers to be relevant to the assessment of the person. QCAT Review [10] The purpose of the review before QCAT is for the Tribunal to produce what the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) terms the ‘correct and preferable’ decision, after a fresh hearing, on the merits.5 In exercising its review jurisdiction the Tribunal must decide the review in accordance with the QCAT Act and the Working with Children Act, and exercises all of the functions of the original decision-maker for the decision now under review.6 Because of s 19(a) of the QCAT Act, the objects7 of the Working with Children Act must still be upheld. That is a matter that is also reaffirmed by s 360 of the Working with Children Act, which provides that a child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child (or children) remains paramount. [11] The decision under review is whether the applicant’s case is an “exceptional case”.8 Pursuant to section 221(2) of the WWC Act, the decision-maker must issue a blue card unless satisfied that an exceptional case exists in which it would not be in the best interests of children to do so.9 The Offending Behaviour [12] The applicant was charged with Unlawful assault – Throw missile injure/danger/damage property committed on 11 January 2014. [13] The circumstances of the offending as described by police and relayed to the Magistrates Court are that the applicant and a co-offender entered a fast-food restaurant whilst intoxicated. They began to make inappropriate comments to a 12- year-old female. The child’s mother approached the applicant and the co-offender to ask them to apologise. The applicant and co-offender became verbally abusive to the mother of the child. The restaurant manager exited the store to intervene, and the co- offender has struck them in the face with her hand. The applicant then threw a packet of hot chips in their face and stuck them in the face with her hand. The applicant and co-offender left the scene. The applicant, 22 years old at the time, was granted a 5 QCAT Act, s20. 6 QCAT Act, s19. 7 WWC Act, s5. 8 WWC Act, s353. 9 WWC Act, s221(2). -- 4 of 9 -- 5 diversion plan, and having satisfied the conditions of her diversion was subsequently discharged without a finding of guilt. [14] The applicant was also charged with 3 counts of Theft from shop (shop steal) committed on 14 November 2018. [15] The circumstances of the offending as described by police and relayed to the Magistrates Court are that the applicant and a co-offender entered a shopping centre with the applicant’s infant son. The co-offender carried the infant while the applicant pushed an empty pram with a cloth draped over it. The applicant and co-offender were captured on CCTV unloading items from the pram into the boot of their car. They then re-entered the shipping centre. They entered a clothing store, and the applicant hid a pair of shorts in the pram and left the store without paying. They then entered a shoe store, and the applicant removed a box of shoes by concealing them in the pram. As the applicant and co-offender were leaving the store, a witness grabbed the pram to prevent the applicant from leaving. A struggle ensued and the applicant let go of the pram and left, leaving it behind. Security was called but the applicant left before they arrived. The applicant and the co-offender were seen on CCTV running from the centre to their vehicle. A search of the pram found three items stolen from the store. The applicant was granted a diversion plan, and having satisfied the conditions of her diversion, was subsequently discharged without a finding of guilt. Consideration of Section 226(2) matters [16] Section 226(2) of the Working with Children Act requires that in cases where a person has been convicted of, or charged with, an offence that regard can be had for certain matters identified therein: Whether the offence is a conviction or a charge [17] The applicant has charges for the following offences: Unlawful assault Throw missile injure/danger/damage prop; Theft from shop (shop steal); Go equipped to steal/cheat. The applicant was granted a diversion and was not convicted. Whether the offence is a serious offence, and, if it is, whether it is a disqualifying offence. [18] The offences with which the applicant has been charged are neither a serious offence10 nor a disqualifying offence11 under the WWC Act. When the offence was committed or is alleged to have been committed [19] The applicant committed the offences in 2014 and most recently in 2018. The applicant’s submissions place emphasis on the passage of time in this matter. As 10 Working With Children Act, sch 2. 11 Working With Children Act, sch 4. -- 5 of 9 -- 6 discussed in the Appeal Tribunal the passage of time without further offending is not, of itself, conclusive that the risk of harm to children is reduced.12 Regardless of the passage of time 2018 is easily considered recent. The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children [20] The applicant has been charged with offending related to aggressive and anti-social behaviour and on 2 separate occasions a child has been present for the offending. The respondent argues that the offending is in contract to the applicant being able to provide a protective environment for young people. The respondent also questions the ability of the applicant to act as a role model for children and young people. It can certainly be argued that at the time of offending the applicant’s behaviour suggests a general disrespect for authority and a tendency towards criminality. [21] In contract the applicant has raised the difficulties she experienced in life as a context in which the behaviour has occurred. It is certainly accepted that the applicant endured much pain and suffering when her partner committed suicide. It is also accepted that the applicant experienced difficult childhood marred by the domestic violence perpetrated by her father. The applicant also provided information regarding the battles she has experienced with her mental health. [22] It is noted that the WWC Act does not require offending to be related to children in order for an exceptional case to be made out. [23] In this particular case, it can be argued that the applicant’s behaviour demonstrates a disregard for authority. The offending can be described as opportunistic and criminal n nature. [24] The issuing of a blue card expects the holder to be able to act in manner that promotes the safety of children and promotes physical and psychological wellbeing. In the case of a conviction the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence or decided not to make a disqualification order under section 357, the Court’s reason for the decision. [25] In this case the applicant was not convicted of her offences. The WWC Act still enables charges to be considered in this instance. The Explanatory notes which accompanied the introduction of the Commission for Children and Young People Bill 2000 explains: “There are a number of circumstances where the presence of certain charges in a person’s criminal history, even without the presence of convictions, would be relevant in making decisions about a person’s suitability to work with children… The infringements [on the rights of individual] are considered necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.”13 12 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [55]. 13 At page 11, Explanatory Notes to the Commission for Children and Young People Bill 2000. -- 6 of 9 -- 7 Section 226(2)(b) – Any information about the person given under sections 318, 319, 335, 337, or 338. [26] No information has been placed before the Tribunal. Section 226 (2)(e) – Anything else relating to the commission, or alleged commission, of the offence that is reasonably considered to be relevant. [27] The applicant has drawn attention to the fact that her behaviour has been greatly dictated by her mental health or lack thereof and that these acts are not normal. [28] The material provided to the Tribunal outlines a young woman with a difficult past who has sought assistance with her mental health for past traumas. The applicant’s offending occurred when she was 22 years old and continued into her later years. This is of itself a concern. [29] From the material provided, including the brief psychological information, it would appear that the passage of time has not been accompanied by any genuine insight regarding this behaviour. The importance of genuine insight as a protective factor was noted by the former Children’s Services Tribunal in Re TAA.14 The Tribunal observed that: The issue of insight into the harm caused on the incidents is a critical matter for the Tribunal. The Tribunal is of the view the good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children.15 The Psychological Report Provided by the Applicant [30] In support of the application, the applicant filed 2 1-page letters from Sandra Kapfer, Psychologist and Carmel Pati, Clinical Psychotherapist. Both letters were written for the purpose of these proceedings but would not be classed as reports. The letters are somewhat scant in detail regarding any real detail. [31] The letter from Ms Pati refers to the applicant as having kleptomania but does not expand on the diagnosis or give any details of when it was made. Whilst the letter speaks about the trauma caused by her partner’s suicide it fails to discuss and triggers identified, strategies put in place and any active treatment being sought. It is also unclear how much information was provided to the author about the offending. It is not clear form the letter what psychometric testing, if any, Ms Pati has relied upon to form a view that the applicant would be suitable to hold a blue card. In fact, the letter gives no mention whatsoever regarding the applicant’s application for a blue card. [32] The second letter from Ms Kapfer is similarly brief. It does not appear from the brief letter that any further testing was undertaken to form the assessment that the applicant does not present a risk of re-offending. In fact, the offending was not examined in detail at all. In the same way, there was no exploration of risk factors or triggers for 14 [2006] QCST 11. 15 Ibid, [97]. -- 7 of 9 -- 8 re-offending. There is no discussion regarding suitability of working with children at all. As such, limited weight is afforded the letters. The Applicant [33] The applicant presented oral evidence at the hearing and was cross examined. In discussion the events the applicant was scant in her memory of events, especially the restaurant assault where she claimed to not remember hitting the manager with her hand and could not recall whether there was swearing during the altercation. [34] The applicant spoke about her current situation parenting her children and her chosen method of gentle parenting. She discussed the difficulties she has experienced with her third child and that the hospital had offered a program to her to help support her parenting. The applicant also outlined there were agencies involved in the care of her children but there were no concerns regarding safety, it was to assist with her post natural depression. [35] The applicant provided information at the time of the 2018 stealing she was being treated and was on medication and that she still committed the crime. The applicant stated she was receiving ongoing treatment and that when her therapist was away, she relied on her best friend who is a social worker and her mother as support. The applicant also revealed she had experienced a period of suicidal thoughts and self- harm but declared she no longer had those feelings. Decision [36] The decision before the Tribunal is whether, having regard to the paramount principle under the WWC Act, the applicant’s case is an exceptional case in which it would not be in the best interests of children for the applicant to be issued a blue card. [37] The object of the Act and the principle that the welfare and best interests of s child are paramount support a precautionary approach to decision making in child-related employment maters. The fact that the bule card can be used across a range of regulated employment is also a consideration. It is not confined to that applicant’s job which is related to nursing. [38] The material presented to the Tribunal, and not denied by the applicant, indicates the applicant has engaged in concerning and inappropriate behaviour which resulted in criminal charges. Whilst there has been some evidence presented by the applicant that she has implemented practical strategies to address the concerns raised at the time that the negative notice was issued, there has not been a significant amount of time lapsed to demonstrate stability and protective factors in place. The applicant has recently experienced a very difficult time with the birth of their third time, and it cannot be said that she has experienced a significant period of stability in which she has receive treatment and discussed protective factors for child focused employment. [39] Having regard to all matters raised and the legislative considerations, the Tribunal finds, that on the balance of probabilities, that this case is an exceptional case and as such that it would not be in the best interests of children and young people for the applicant to be issued with a blue card. -- 8 of 9 -- 9 Order [40] The decision of the Director-General, Department of Justice and Attorney General that the applicant’s case is “exceptional” within the meaning of s221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. -- 9 of 9 --