DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33 PARTIES: DVL (applicant) v DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) APPLICATION NO: CM336-20 MATTER TYPE: Childrens matters DELIVERED ON: 17 January 2022 HEARING DATE: 30 July 2021 HEARD AT: Townsville DECISION OF: Member Pennell ORDER: 1. The decision of the Director General, Department of Justice and Attorney-General dated 17 August 2020 that the applicant’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. The publication of the contents of any document or thing filed in or produced to the Tribunal and any evidence given to the Tribunal by any witness is prohibited to the extent that it could lead to the identity of the applicant or any member of the applicant’s family or any non-party to the proceedings CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY EVIDENCE – MISCELLANEOUS MATTERS – applicant has a history of psychiatric illness – the applicant was charged with offences in Victoria and acquitted on grounds of mental impairment – charges discharged – applicant does not have extant charges – applicant requires a blue card for child related employment – respondent assessed applicant’s police information and decided his case was exceptional – -- 1 of 19 -- 2 applicant submits the respondent erred at law by not applying a precedent from the Tribunal’s appeal jurisdiction – precedent relates to section 221(1)(b)(iii) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) only applying to extant charges – precedent provides that charges which have been dismissed should not be taken into account, unless they relate to disqualifying offences – paramount principle for reviewing child related employment decisions – child related employment decisions are to be reviewed under the principle that the welfare and best interests of children are paramount – the correct and preferable decision is to be based on the merits of the application after applying the paramount principle – insight is a protective factor in child related employment – children depend upon adults possessing appropriate insight when engaging in child related employment – whether the applicant has displayed insight into his own mental health Human Rights Act 2019 (Qld), s 13 and s 58(5) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(d), s 6, s 19(c), s 20, s 20(1), s 20(2), s 24(1), s 28(2), s 28(3)(b), s 28(3)(c), s 28(4), s 66(1), s 66, s 66(2)(b), s 66(2)(e) and s 66(3) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 221(1)(a), s 221(1)(b)(iii), s 221(1)(b)(iv), s 226, s 226(2)(e), s 353, s 354, s 360 and Schedule 7 Century Metals and Mining NL v Yeomans (1989) 40 FCR 564 Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 CMH v Director General, Department of Justice and Attorney General [2020] QCAT 15 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Deakin v Webb (1904) 1 CLR 592 Director General, Department of Justice and Attorney General v CMH [2021] QCATA 6 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Enever v R (1906) 3 CLR 969 FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350 -- 2 of 19 -- 3 HAM v Director General, Department of Justice and Attorney General [2021] QCAT 28 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Kent v Wilson [2000] VSC 98 OPO v Director General, Department of Justice and Attorney General [2021] QCAT 207 Perry and Browns Patents (1930) 48 RPC 200 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 Re TAA [2006] QCST 11 The King v War Pensions Entitlement Appeal Tribunal; ex-parte Bott (1933) 50 CLR 228 APPEARANCES & REPRESENTATIONS: Applicant: J Mallory, Solicitor, Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd Respondent: D Taylor, Counsel, In-House Advocacy Officer for Blue Card Services REASONS FOR DECISION Introduction [1] DVL (‘the applicant’) applied to the Department of Justice and Attorney General (‘the respondent’) for a positive notice and a blue card for child related employment. Subsequent to the receipt of his application, the respondent made enquires to verify if he was adversely known in respect to police information. [2] The respondent wrote to the applicant and enclosed a copy of his police information. He was invited to make submissions about the police information and why a negative notice should not be issued. He subsequently made those submissions, which were then considered by the respondent.1 [3] After providing the appropriate consideration to the applicant’s submissions, and having assessed his eligibility, the respondent determined that the most appropriate action was to issue him a negative notice pursuant to the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). 1 The respondent wrote to the applicant on 31/01/2020. -- 3 of 19 -- 4 [4] The applicant disagreed with that decision and subsequently filed an application with the Tribunal for a review of the respondent’s decision.2 The respondent’s reasons for decision [5] When undertaking an assessment as to whether the applicant was eligible to be issued with a positive notice and blue card, the respondent received police information from the Victoria Police Force relating to his arrest during an incident at the Box Hill Hospital in Melbourne on 1 December 2014 (‘the Box Hill Hospital incident’).3 [6] At the time of the Box Hill Hospital incident, the applicant was aged 21 and the police information suggested he unlawfully assaulted an on duty emergency worker and caused criminal damage.4 [7] Leading up to the Box Hill Hospital incident, the applicant was suffering from what was described as a psychotic episode. He attended the Box Hill Hospital with his mother as a voluntary patient. Prior to being admitted into hospital, he absconded and ran towards a driveway designated for ambulance and delivery vehicles. He tried to gain entry to that area. His demeanour was described as being agitated and pacing back and forth. When he was refused entry to that area, he kicked out at the glass door on multiple occasions causing the glass to shatter. [8] To de-escalate the incident and calm the applicant, security staff provided him with a cup of coffee. Because of the circumstances of his behaviour, the police were called. When the police officers arrived, he threw the coffee over one of the officers. He also made attempts to punch that officer. He was overpowered, restrained and then handcuffed. [9] The police charged the applicant with unlawfully assaulting an emergency worker, causing criminal damage and unlawful assault. He pleaded not guilty. The charges were listed before the Ringwood Magistrates Court on 7 December 2015. He was found not guilty because of mental impairment and discharged. [10] The applicant has no prior convictions for any offence, and apart from that information just described, he is not otherwise adversely known to the police. [11] In rejecting the applicant’s application, the respondent acknowledged that while every person is presumed innocent, the legislators determined that in very limited circumstances that presumption should be displaced. This is because when undertaking the balancing act of applying the rights of an individual against the protection of children, the balance is tipped in favour of children.5 [12] The respondent accepted that although the charges preferred against the applicant were not defined as serious or disqualifying offences, the circumstances of the 2 Application filed with the Tribunal on 02/09/2020. 3 Respondent’s material at BCS-12 to BCS-14. 4 The police information indicates that the emergency worker was aged 71. 5 Contained within the comments in the Explanatory Notes of the Commission for Children and Young People Bill 2000 (Qld) at page 10 is a reference to the infringements [on the right of an individual] which is 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. -- 4 of 19 -- 5 offences were considered in regard to his eligibility to be issued with a blue card. He displayed reckless, violent and aggressive conduct within a public place whereby he assaulted a police officer and wilfully damaged property. This took place in a setting where children and young people could have witnessed his behaviour. [13] That behaviour raised concerns about his ability to exercise restraint and judgment; his ability to manage his anger and frustration when faced with difficult or stressful situations; as well his ability to respond to situations of stress and/or conflict in a calm and law abiding manner. The respondent was of the view that these skills were particularly important when undertaking child related employment so the applicant could contribute to the creation of a safe and protective environment for children. [14] The respondent considered the applicant’s submissions, including the supporting material provided by his doctor.6 It was noted that although the applicant had engaged in counselling since the Box Hill Hospital incident; and there was a suggestion that he was no longer psychotic, there was no explanation of the nature of the mental health treatment he had received or was receiving. [15] Observed by the respondent was the absence of any supporting information discussing the likelihood of any future manifestation of the violent or aggressive behaviour he previously displayed. Also absent was an explanation of the strategies and/or skills he now utilises to assist him to respond in a calm and law abiding manner to situations of stress or conflict. [16] The respondent considered the applicant’s human rights with respect to the limitations imposed upon him should a negative notice be issued.7 The conclusion reached was that the limitation on his human rights is consistent with the object and purpose of the Working with Children Act. That is, the welfare and best interests of children is paramount to any consideration to the issuing of a positive notice. [17] The applicant’s behaviour during the Box Hill Hospital incident reflected adversely on his eligibility to be entrusted to safeguard the best interests of children and young people placed in his care and to be an appropriate role model for them. In consideration of that, the respondent was satisfied that because the Working with Children Act is protective legislation, the test to be applied so far as the applicant's eligibility to hold a positive notice and a blue card must be rigorous applied. Applicant’s case [18] Previously, the applicant had lived in Victoria. He moved to Townsville because his parents relocated and purchased a house in that locality. After arriving in Townsville, he undertook studies as a support worker for people with disabilities. He dedicated himself to his studies and attained a Certificate 3 in Individual Disability Support. [19] He also attained his CPR and First Aid Certificates, along with Medication Handling and Complex Care Certificates. Shortly after attaining those qualifications, he started work in the area of community services. He then commenced his studies towards attaining a Diploma of Nursing. 6 Medical Certificate provided by Dr JR. 7 Human Rights Act 2019 (Qld), ss 13 and 58(5). -- 5 of 19 -- 6 [20] His partner fell pregnant, and for financial reasons to support his family, he decided to pause his studies and return to the workforce as a support worker. It was during that employment that he applied for a blue card and was subsequently issued with a negative notice by the respondent. He has since gained employment in another field of work. [21] In addressing the respondent’s concerns about the events relating to the Box Hill Hospital incident, the applicant confirmed in a statement provided to the Tribunal that on 1 December 2014 he went to the Box Hill Hospital with his mother as a voluntary psychiatric patient. He accepts that he was experiencing psychosis at that time and was having a psychotic episode. He acknowledged he had been charged with the offences previously outlined in these reasons. [22] He went on to say – …. there were no children present and the victim was an adult, I was found unfit to make a statement to the police due to being admitted to being mentally unwell. I had a court appearance at Ringwood Magistrates Court for assault and criminal damage charges on 7/12/15 for offences I committed while being psychotic, the result of this charge was that I was found not guilty on the grounds of mental impairment, as a result of the court case I have been assessed by a forensic psychiatrist provided by legal aid. I continued seeing mental health support through Upton house and Koonung clinic in box hill (mental health outpatient services). I have participated in counselling since the event and am no longer psychotic. I was taking medication until November last year though have not needed it since. I no longer am engaged in mental health services as I was given the option when I left Victoria to continue to see outpatient services in Townsville and declined as they said it was no longer necessary and I could continue receiving support through a GP. I have been stable and not psychotic since and have began participating In a course in Individual disability support to try to help people affected by disability and mental health issues for which I require a blue card.8 [23] To support his position, he provided a medical certificate from Dr JR. The certificate was issued over five years after the Box Hill Hospital incident, and it outlined – This is to confirm that [DVL] is receiving medical treatment for his mental health condition.9 [24] The applicant submitted that the Tribunal must follow the decision of Director General, Department of Justice and Attorney General v CMH [2021] QCATA 6 (‘CMH’) in regard to the charges referred to in his police information and set aside the respondent’s decision.10 [25] In presenting his case, the applicant’s ultimate position is that the respondent did not fulfill the legislative obligation to issue him with a positive notice and erred in applying an incorrect interpretation of the provisions of the Working with Children Act when arriving at the decision to issue him with a negative notice.11 That erroneously led to an incorrect conclusion regarding the validity of the police 8 Respondent’s material at BCS-24. 9 Respondent’s material at BCS-23. 10 Applicant’s written submissions dated 20/08/2021, page 1. 11 Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 221 and 226. -- 6 of 19 -- 7 information relating to the Box Hill Hospital incident because there is neither police information nor disciplinary information relating to him. [26] In explaining his submissions, the applicant referenced comments made in CMH and said that he did not have any extant charges or convictions on his criminal history. Therefore, he had no criminal history. If there was not any criminal history, then there was no police information as defined in the Working with Children Act. [27] He went on to say that consequently, this meant that section 221(2) of the Working with Children Act cannot apply, and section 221(1)(a) applied instead. He argued that by applying the reasoning arrived at in CMH, his case cannot be considered an exceptional case. That left the Tribunal in a position where it must therefore set aside the respondent’s decision that his case was an exceptional one and substitute it with a decision that his case is not exceptional.12 [28] I will return later in these reasons to further discuss the applicant’s argument, along with whether the respondent was obliged to issue him a positive notice and blue card. The Tribunal’s role [29] Because the applicant has applied for a review of the respondent’s decision to issue him with a negative notice, the Tribunal must hear and decide his application by way of a merits review of the respondent’s decision. In undertaking the review, the Tribunal is obliged to apply the principle that the welfare and best interests of children are paramount.13 [30] Although not confined to the evidence or materials that were present in the original decision making process, a pertinent feature of the review hearing is that it is to be undertaken as an administrative review by way of a fresh hearing on the merits of the application.14 [31] Reviews of decisions made in regard to child related employment matters are merit reviews and the Tribunal’s role in a merit review hearing is distinguished from the role of other jurisdictions exercising judicial reviews. This was explained in Kehl v Board of Professional Engineers of Queensland that – The Tribunal’s role in exercising review jurisdiction is to reconsider the original decision and to make the correct and preferable decision. The review is conducted on the merits, by way of a fresh hearing. Unlike judicial review, the Tribunal’s function is to review the decision – not the process by which it was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made.15 [32] In undertaking its function in a merits review hearing, the Tribunal ‘stands in the shoes’ of the respondent and the purpose is to produce the correct and preferable decision.16 The question for the Tribunal’s determination is not whether the original 12 Applicant’s written submissions dated 20/08/2021, paragraphs 3 – 5. 13 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360. 14 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2). 15 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9]; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 16 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1). -- 7 of 19 -- 8 decision was the correct or preferable one based on the material which was before the respondent when the original decision was made, but rather whether the decision of the Tribunal is the correct and preferable one based on the material before the Tribunal at the time of the review hearing.17 [33] Pursuant to the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’),18 when arriving at the correct and preferable decision, the Tribunal can either confirm or amend the respondent’s decision; or set aside the respondent’s decision and substitute that decision with its own decision;19 or set aside the respondent’s decision and return the matter for reconsideration to the respondent with the directions the Tribunal considers appropriate.20 Exceptional Case [34] An observation of the Working with Children Act is that the intent of the legislation is not to punish people twice; it is about implementing the paramount principle in regard to protecting children from future abuse.21 [35] The Working with Children Act speaks about an exceptional case and although that term is not defined within the legislation, it has been the subject of prior discussions in many jurisdictions, including the Tribunal’s appeal jurisdiction. The term is said to be a question of fact and degree to be decided in each individual case and is necessarily a matter of discretion.22 [36] In reaching a conclusion in regard to blue card matters, regard must be given to the context of the Working with Children Act, along with the intent, purpose and design of that legislation for the protection of children. [37] In Commissioner for Children and Young People and Child Guardian v FGC the Tribunal accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, along with the intent and purpose of the legislation which was designed to protect children.23 [38] In Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1, the Supreme Court of Victoria observed the frequently cited definition of exceptional 17 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589. 18 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1). 19 If the Tribunal decides to set aside an exceptional case decision, the Tribunal’s decision does not take effect until the end of the period within which an appeal against the Tribunal’s decision may be started; or if the Chief Executive appeals the Tribunal’s decision, the appeal is decided or withdrawn. This overrides the provisions of the Queensland Civil, and Administrative Tribunal Act 2009 (Qld), ss 145 and 152 which provide for the effect of an appeal on the decision of the Tribunal. 20 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1). 21 Queensland Parliament Hansard, 14 November 2000 at p. 4391. 22 The approach applied by Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1, in adopting the warning of Luxmore J in Perry and Browns Patents (1930) 48 RPC 200, that it would be most unwise to lay down any general rule with regard to what is an exceptional case. All these matters are matters of discretion. This was adopted by the Queensland Court of Appeal in Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34] and cited by the Tribunal in FGC v Commissioner for Children and Young People and Child Guardian [2010] QCAT 350, [18]. 23 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] citing the determination of Hedigan J in Kent v Wilson [2000] VSC 98, [22]. -- 8 of 19 -- 9 case which arose out of a warning given by Luxmoore J in Re Perry and Brown's Patents (1930) 48 RPC 200 that it would be unwise to lay down any general rule about what an exceptional case is, discretion should be used.24 This approach has since been adopted in Queensland where the Court of Appeal in Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 endorsed those comments I just referred to.25 [39] In reaching the correct and preferable decision, the Tribunal is required to weigh up the competing facts and apply the balance of probabilities principle. As it is often observed in blue card matters, a determination of whether an exceptional case exists or not is made after evaluating all the available evidence without any party bearing the onus of proof that an exceptional case exits.26 Rules of evidence [40] The Tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record.27 It may inform itself in any way it considers appropriate,28 and may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement under the QCAT Act, an enabling Act or the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) relating to the document or the service of it.29 However, in doing all of that, the Tribunal must observe the rules of natural justice.30 [41] Although not bound by any rules of evidence, this does not mean that all rules of evidence may be ignored as of no account. The issue about the application of the rules of evidence to jurisdictions where the rules do not apply was discussed by the High Court of Australia in The King v War Pensions Entitlement Appeal Tribunal; ex-parte Bott (1933) 50 CLR 228. In that case, the High Court said that rules of evidence represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. The High Court went on to say that no Tribunal can, without grave danger of injustice, set them to one side and resort to methods of inquiry that necessarily disadvantage the opposing party. In other words, although rules of evidence as such do not bind, every attempt must be made to administer substantial justice.31 [42] In conclusion, when undertaking review hearings, the Tribunal must act fairly and according to the substantial merits of the case32 and is bound to proceed in unison with the principals of natural justice.33 If the Tribunal considers there was a gap in the applicant’s case, those principles do not ordinarily require the Tribunal to warn 24 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1. 25 Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34]. 26 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19]. 27 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b). 28 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c). 29 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(4). 30 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a). 31 The King v War Pensions Entitlement Appeal Tribunal; ex-parte Bott (1933) 50 CLR 228, 256. 32 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2). 33 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a). -- 9 of 19 -- 10 the applicant of that gap so as to provide the opportunity of addressing that gap (if they could).34 Discussion [43] Previously discussed in these reasons was the issue relating to the applicant’s position that the respondent failed to correctly apply section 221 of the Working with Children Act and this led to an incorrect decision to issue him with a negative notice. His argument as to why his case is not exceptional has been explained earlier in these reasons, in particular at paragraphs [24] to [27]. [44] Bearing in mind the charges preferred against the applicant were discharged, what becomes relevant in this matter are the provisions within the Working with Children Act relating to a number of definitions, including ‘police information’, ‘criminal history’, ‘charge’, and ‘dealt with’. [45] The definition of police information about a person means and includes the person’s criminal history. Criminal history is defined as including every charge made against the person for an offence in Queensland or elsewhere. A charge for an offence means a charge in any form, including a charge on an arrest and when a charge for an offence is dealt with. This includes a charge that has been withdrawn or dismissed. A charge that has been withdrawn or dismissed is considered to have been ‘dealt with’.35 [46] The applicant’s argument is that although he was charged with offences arising from the Box Hill Hospital incident in 2014, the police information does not contain ‘criminal history’ as defined in the legislation. This is because he was acquitted of the charges and discharged, and there are no extant charges within the police information. [47] In support of this argument, he drew upon the comments made by the Tribunal’s appeal jurisdiction in CMH. CMH was an appeal by the respondent of the Tribunal’s decision at first instance. After a merits review hearing, the Tribunal at first instance set aside the respondent’s decisions that CMH’s case was exceptional.36 [48] Observed within CMH’s police information were charges that had been dismissed by the Magistrates Court in 1991. Because those charges had been dismissed, the Tribunal at first instance considered that no assessment of the allegations about the charges was necessary having regard to the correct and preferable decision.37 [49] In appealing the review decision, the respondent argued that the 1991 offences remained relevant to the determination of an exceptional case, and a dismissal of charges had no bearing on the respondent’s ability to regard them as relevant criminal history. This was because the Working with Children Act defined ‘criminal history’ to include every charge, regardless of the outcome.38 34 Century Metals and Mining NL v Yeomans (1989) 40 FCR 564, 593. 35 Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 7. 36 CMH v Director General, Department of Justice and Attorney General [2020] QCAT 15. 37 CMH v Director General, Department of Justice and Attorney General [2020] QCAT 15, [28]. 38 Director General, Department of Justice and Attorney General v CMH [2021] QCATA 6, [26] – [27]. -- 10 of 19 -- 11 [50] In analysing that appeal point, the Tribunal in CMH referred to the provisions contained within the Commission for Children and Young People Bill 2000 Explanatory Notes about a person’s criminal history. The Explanatory Notes explained that despite anything in the Criminal Law (Rehabilitation of Offenders Act 1986 (Qld), a person’s criminal history is defined as including a charge of an offence in any form and convictions whether or not a conviction is recorded.39 [51] Taking into account the provisions of the Explanatory Notes, the Tribunal in CMH went on to conclude that (footnotes omitted and emphasis added) – The 1991 charges were not for disqualifying offences. In our view, it is evident that a ‘charge’ for the purposes of s 221(1)(b)(iii) of the WWC Act refers to a charge that is extant. The term ‘charge’ is defined in the WWC Act in terms of the form that the charge might take and does not assist in determining whether or not it is intended to be confined to an extant charge. However, the legislative context suggests that it is so intended. Section 221(1)(b)(iii) deals with a charge for an offence ‘other than a disqualifying offence’. The latter is dealt with separately in s 221(1)(b)(iv). That subsection arises for consideration where the chief executive is aware that, in relation to the person, there has been a charge for a ‘disqualifying offence’ that has been dealt with other than by conviction. The term ‘dealt with’ is defined in Schedule 7 of the WWC Act and includes circumstances where a charge has been dismissed or there has been an acquittal. The fact that the meaning of the term ‘charge’ for the relevantly more serious disqualifying offences is expressly extended to include circumstances where the charge has been dismissed or there has been an acquittal, but is not so extended for other offences, suggests an intention to limit charges for the purposes of s 221(1)(b)(iii) to extant charges.40 [52] When reaching that conclusion, the Tribunal footnoted to that paragraph the comment that – It is evident that the requirement in s 226(2)(e) for the chief executive to ‘consider anything else’ relating to the commission or alleged commission of the offence, does not expand upon the offences that are to be considered under s 221 of the WWC Act. As is evident from the terms of the Act and the Explanatory Note (see paragraph 29 above), it seems that it was intended that only the specified charges should be considered.41 [53] The Tribunal then went on to explain that the view just adopted was supported by the Explanatory Notes, which said – These provisions are intended to provide the commission with access to all information considered necessary in assessing a person’s suitability for child related employment. 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 a decision about a person’s suitability to work with children. For example, in cases involving sexual offences against children, convictions may be difficult to obtain because of the need to rely on child witnesses. There are instances where the court may decide that a child 39 Commission for Children and Young People Bill 2000 Explanatory Notes, page 11. 40 Director General, Department of Justice and Attorney General v CMH [2021] QCATA 6, [28]. 41 Director General, Department of Justice and Attorney General v CMH [2021] QCATA 6, [28], Footnote 62. -- 11 of 19 -- 12 witness is too young to give evidence or withstand the experience of an adversarial court proceeding.42 [54] In conclusion and rejecting the respondent’s appeal point in CMH, the Tribunal concluded that charges that have been dismissed should not be taken into account, unless they relate to disqualifying offences – On that basis, it is evident that the intention was that charges that have, for example, been dismissed should not be taken into account, unless they relate to disqualifying offences. Accordingly, the submission that no proper account was taken of the 1991 charges that were dismissed by the court is not upheld.43 [55] In furtherance to the applicant’s case, he said that the Tribunal was obliged to treat like cases alike,44 and submitted that the Tribunal was already utilising the interpretation of the word ‘charge’ as defined in CMH. He referred to OPO v Director General, Department of Justice and Attorney General [2021] QCAT 207 (‘OPO’). [56] In OPO, the applicant in that matter was the subject of an indictment presented in the District Court at Townsville charging him with possession of a dangerous drug, with the quantity of that drug exceeding the amount prescribed in Schedule 3 of the Drugs Misuse Regulation 1987 (Qld). A nolle prosequi was later entered by the prosecution and the charge was discharged. [57] Apart from that drug matter, he had convictions for traffic related offences, along with public nuisance and associated public disorder type offences. There was also a concerning entry relating to a domestic violence incident where he broke into his girlfriend’s residence and physically assaulted her. [58] I note that in OPO, the Tribunal referred to the same passage from CMH that I have already referenced in these reasons. In referring to CMH, the Tribunal in OPO accepted the view expressed in CMH and considered OPO’s discontinued drug charge was not a relevant consideration in the overall decision arrived at. The Tribunal in OPO went on to say – Its only relevance is that it was one of the topics discussed in evidence by the applicant where he displayed evasiveness and a tendency to contradict himself. This goes to the credit of the applicant due to his behaviour at the Tribunal as opposed to the actual charge itself.45 [59] The Tribunal then went on to consider OPO’s domestic violence history and noted – Of much greater significance is the applicant's information or contradictory information relating to his domestic violence protection order. The applicant tended to paint himself to be the victim in that circumstance. He was inconsistent about whether he accepted the police version of events or not. He described the event and the applicant’s behaviour as justifying his behaviour 42 Director General, Department of Justice and Attorney General v CMH [2021] QCATA 6, [29]; Commission for Children and Young People Bill 2000 Explanatory Notes, page 11. 43 Director General, Department of Justice and Attorney General v CMH [2021] QCATA 6, [30]. 44 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(d); Applicant’s submissions dated 20/08/2021 at paragraph 21. 45 OPO v Director General, Department of Justice and Attorney General [2021] QCAT 207, [54]. -- 12 of 19 -- 13 and violence. From the terms he used OPO can only be described as exhibiting a lack of insight into his behaviour and a lack of respect for the aggrieved.46 [60] In my assessment of the applicant’s submissions, he suggests that I should consider OPO because the Tribunal referred to CMH as to the weight placed upon discontinued charges. His submissions are not persuasive because like his own case, OPO consisted of other relevant matters, including insight. [61] In returning to the applicant’s case, he suggested the reason why the respondent cannot rely upon the Victorian police information as a ‘charge’ was for those reasons already outlined from the Tribunal’s findings in CMH. [62] He argued that because the charges preferred against were for offences other than disqualifying offences as provided by section 221(1)(b)(iii) of the Working with Children Act, I was obliged to follow the precedent set in CMH which interpretated that for the purposes of that section, this only refers to a charge or charges that are extant.47 Extant means surviving or still in existence, which of course the applicant’s charges were not. They have been discharged. Because of the conclusions reached by the Tribunal in CMH, the applicant argued that the doctrine of precedent applied; the conclusions were binding; and I was bound to follow the reasoning of the appeal jurisdiction. [63] In response to the arguments presented by the applicant, the respondent said that the term ‘charge’ had an exclusive definition and is not constrained in this interpretation to apply only to some categories of charges and not others or to some charges and not others. [64] In discussing the application of section 221(1)(b)(iii) of the Working with Children Act, the respondent said that the offences for which the applicant had been charged related to offences other than disqualifying offences, therefore section 221(1)(b)(iii) applied; and if the intention of the legislature was to restrict the meaning of the term ‘charges’ or restrict the meaning of section 221(1)(b)(iii), it could easily have done so.48 [65] In response to the applicant’s argument that I was bound to follow the decision in CMH, the respondent said that those comments were made in obiter in an otherwise successful appeal. Therefore, it was not binding on the Tribunal when deciding the applicant’s case. The respondent went on to say that it is an accepted legal proposition that extraneous material, including Explanatory Notes should only be used to clarify an interpretation where the meaning is unclear or ambiguous. The respondent submitted that the wording used in the definition of the term ‘charge’ is clear and unambiguous.49 [66] The respondent added that the Working with Children Act is protective legislation specifically enacted to protect the rights and interests of children. If the Tribunal’s comments in CMH were applied to the interpretation of section 221, this will lead to a perverse outcome under the Working with Children Act. The respondent pointed 46 OPO v Director General, Department of Justice and Attorney General [2021] QCAT 207, [55]. 47 Director General, Department of Justice and Attorney General v CMH [2021] QCATA 6, [28]. 48 Respondent’s submissions dated 23/03/2021, page 3, paragraph 15 and page 4, paragraphs 18 – 19. 49 Respondent’s submissions dated 23/03/2021, page 7, paragraph 27(1)(b)(ii). -- 13 of 19 -- 14 out that this means the decision maker would be unable to assess whether an applicant was an exceptional case where they had a discontinued charge or charges. [67] Before turning to a discussion as to whether any weight should be applied to the submissions of both parties, I am mindful that a precent or a judgement or a decision that is authority for a case on similar facts can contain both ratio decidendi and obiter dictum (‘obiter’). [68] Ratio decidendi means the reason for deciding. It applies to any indispensable factor in the process of reasoning leading to a judicial decision. Rationes decidendi of the higher courts (or tribunals) are binding on lower courts (or tribunals) by virtue of the common law doctrine of precedent.50 Obiter refers to a remark in passing or judicial observations that do not form part of the reasoning of a case.51 Unlike rationes decidendi, obiter is not binding on lower courts or tribunals nor subsequently on the courts or tribunal that makes them.52 [69] In my assessment of the reasoning arrived at in CMH, a crucial factor in the process adopted by the Tribunal which led to the decision in CMH on that point was when the Tribunal concluded that dismissed charges should not be considered, unless they relate to disqualifying offences; and there was a legislative intent to limit ‘charges’ for the purposes of section 221(1)(b)(iii). This was not obiter, but instead was the reasoning for the Tribunal dismissing the respondent’s submissions on that point. Merits review – child related employment decisions [70] In accordance with the applicant’s case, because he was not a disqualified person, the Working with Children Act (as the enabling Act) afforded him the discretion to apply to the Tribunal, within the prescribed period, for a review of the respondent’s decision to issue a negative notice.53 [71] The respondent’s decision to issue that negative notice is a reviewable decision pursuant to the Working with Children Act.54 The QCAT Act provides that the Tribunal is obliged to hear and decide a review of a reviewable decision by way of a fresh hearing on the merits, with the purpose of the review to produce the correct and preferable decision based on those merits of the application.55 That purpose is undertaken with the Tribunal stepping into the shoes of the original decision maker and the Tribunal is obliged to apply the principle that the welfare and best interests of children are paramount.56 [72] In reaching the correct and preferable decision in this matter, I am particularly mindful of the actual role entrusted to the Tribunal when it exercises the review jurisdiction.57 Already identified in these reasons, reviews of decisions made in 50 Deakin v Webb (1904) 1 CLR 592. 51 Enever v R (1906) 3 CLR 969, 973. 52 Deakin v Webb (1904) 1 CLR 592. 53 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 354; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6. 54 Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 353 and 354. 55 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 56 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c); Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360. 57 Queensland Civil and Administrative Tribunal Act 2009 (Qld), Chapter 2, Part 1, Div 3. -- 14 of 19 -- 15 regard to child related employment matters, or more commonly referred to as blue card matters, are undertaken by way of a merits review as to whether an applicant’s case is exceptional. Those merit reviews are conditional on the provisions of the Working with Children Act, the QCAT Act and the QCAT Rules. [73] An important feature of the Tribunal exercising its role to review a decision made by the respondent in blue card matters are that these types of reviews do not fall within the category of a judicial review. A judicial review is quite different from a merits review; it is not concerned with the merits of the decision. The object of a judicial review is to make certain that the law is observed and examine the power or jurisdiction of the decision maker to make the decision or to take some action. Considerations within a judicial review involve whether there was authority or law to allow the decision to be made, and if there was, whether it was exercised lawfully. [74] In this case, the applicant’s argument is that the respondent’s original decision maker failed to lawfully exercise their decision making role pursuant to section 221 of the Working with Children Act. Therefore, the decision not to issue him with a positive notice and blue card does not accord with the reasons explained by CMH as it applies to the charges on his police information. [75] Because the review of the respondent’s decision in this matter is based on the merits, the real heart of this matter is not whether the reasoning behind the Tribunal’s decision in CMH is a precedent that I should follow, but rather it is one where I am obliged by the law as it is laid down in the Working with Children Act to apply the paramount principle as it relates to child related employment decisions. That is, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.58 [76] The applicant’s argument is an attempt to persuade me from undertaking a merits review; and instead asks me to mount a judicial review to establish that his case is not an exceptional one by applying the precedent established in CMH. I decline to cede to his submissions. Because to do that it would forsake the legislative intent, object and principles as they apply to child related employment matters. It would also forsake the Tribunal’s legislative role when undertaking a merits review into child related employment decisions. The object is to promote and protect the rights, interests and wellbeing of children and young people; and the principles are that the welfare and best interests of a child are paramount; and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.59 [77] Although the applicant’s focus in presenting his case has been on whether the respondent erred at law in not issuing him with a positive notice and blue card, albeit mounting a judicial review argument, I am concerned more so with the merits of the facts, circumstances and features of his case. DVL’s medical condition – insight a relevant factor [78] In situations where the Tribunal is faced with determining circumstances such as displayed in the applicant’s case, a key factor for determination is the issue of 58 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360. 59 Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5 and 6. -- 15 of 19 -- 16 ‘insight’, and whether he has the awareness of the consequences of his actions on others, in particular children. Guidance for the principle relating to insight can be found in the Tribunal’s decision of Re TAA where it was explained – The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that 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 on the adults around them having insight into their actions and the likely effect on children.60 [79] The facts and circumstances suggest that the applicant has an undiagnosed psychiatric condition that precipitated a psychotic episode in December 2014. The applicant has never addressed or provided any explanation for the concerns surrounding the features of his mental health that impacted so greatly upon him in December 2014; or provided any explanation for the necessity for him to be taken to the Box Hill Hospital for treatment. [80] What triggered that episode is unknown, or at the very least the applicant has not disclosed this. What treatment he has undertaken, if any, is also unknown; and what measures, if any, implemented by him to manage his current mental health condition has not been disclosed and is unknown. It has to be accepted that there is a current mental health issue relating to the applicant because his own doctor confirmed this in a medical certificate that he was receiving medical treatment for his mental health condition.61 [81] My observations of the applicant’s circumstances are – (a) Although having been assessed by a forensic psychiatrist provided by legal aid, no information was provided to the respondent or the Tribunal as to the conclusion reached in that assessment. Nor has there been any discussion surrounding what treatment, if any, was necessary or undertaken; what the underlying triggers for his behaviour were; and what, if any was his risk to others, in particular children. (b) He said he continued seeing mental health support through Upton House and Koonung clinic in Box Hill (mental health outpatient services). No information was provided as to why those consultations were undertaken, or when or the number of, and the time frame in which those consultations were undertaken. (c) He has participated in counselling since the event and is no longer psychotic. Although making that comment, he provided no information as to who, or which counselling service he interacted with. Nor was there any report or other appropriate confirmation that he was no longer psychotic. (d) He was taking medication until November 2020 although he has not needed it since. Again, no information was provided as to what type of medication he was prescribed or the diagnosis for which that medication was prescribed. Nor was there any information provided as to his condition, either mental or physical, that required him to be medicated. 60 Re TAA [2006] QCST 11, [97]. 61 Respondent’s material at BCS-23. -- 16 of 19 -- 17 (e) He is no longer engaged in mental health services and was given the option when he left Victoria to continue to see outpatient services in Townsville. He declined as he was told it was no longer necessary and he could continue receiving support through a GP. This comment does not correlate with the medical certificate issued by his treating doctor. (f) He has been stable and not psychotic since the Box Hill Hospital incident. No evidence has been provided to alleviate concerns of a risk having regard to the opinion expressed by the applicant’s doctor in his medical certificate. [82] The information relating to those about comments were derived from the applicant’s undated statement, although it appears that it was compiled prior to the respondent issuing a negative notice on 17 August 2020. I do note that he provided a subsequent affidavit to the Tribunal, however the contents of that affidavit do not address those issues just discussed.62 [83] Discussed above was a medical certificate provided by Dr JR. The certificate was completed on 17 June 2020, a period of over five years after the Box Hill Hospital incident. In his statement, the applicant suggested that he no longer has a mental health issue, yet his treating medical practitioner outlined that as of the date of the medical certificate was completed, he was receiving medical treatment for his mental health condition.63 Those facts are contradictory. [84] Although the Tribunal should never speculate about matters, what the applicant has succeeded in doing was leaving many questions unanswered about whether his mental health issues have been or are currently being appropriately addressed. Failure to address those concerns shows a lack of insight. [85] The applicant should at least be able to demonstrate awareness, be insightful and acknowledge any identifiable flaws and deficiencies within himself or his character at the time leading up, and during the Box Hill Hospital incident. He should also possess the appropriate attributes to be able to recognise and accept the subsequent or possible consequences than can flow from any such flaws or deficiencies, if they exist.64 [86] In furtherance to those comments, the potential future risks to children are an important consideration so far as the applicant’s suitability to hold a blue card and positive notice. So too are the issues of whether he possesses or has demonstrated insight into and is able to appropriately assess his own mental health issues and the potential risks which can flow from that. [87] What is to be at the forefront of the Tribunal’s correct and preferable decision is the principle of preventing any potential future harm to the welfare and best interests of children.65 The establishment of a future risk of harm can only come about if the evidence supports a nexus of a current risk to children to the issuing of a positive notice and blue card to the applicant.66 62 Applicant’s affidavit filed 27/11/2020. 63 Respondent’s material at BCS-23. 64 HAM v Director General, Department of Justice and Attorney General [2021] QCAT 28, [54]. 65 Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28, [84]. 66 HAM v Director General, Department of Justice and Attorney General [2021] QCAT 28, [10]. -- 17 of 19 -- 18 [88] The applicant’s present inability to address those concerns satisfies me of an appreciable risk and a nexus between the circumstances relating to his concerning mental health condition and likelihood of risk to children in the future. Conclusion [89] The test imposed upon the Tribunal to reach the correct and preferable decision in child related employment decisions is extremely rigorous. Being mindful that it is not the intent of the Working with Children Act to impose an additional punishment upon the applicant, my focus is appropriately on whether there is a potential risk to children and any decision I make must be according to the principle of the legislation. Afterall, the overarching feature of the Working with Children Act is that it is protective legislation in respect to children and young people. [90] In assessing the potential risk to children, what is concerning for me are the factors associated with what, if any, is the risk of repetition of the applicant’s psychotic episode which led to the Box Hill Hospital incident. For determination is whether the risk of harm to children is sufficiently negated so that it could be concluded that there is little likelihood of the risk to children having regard to the applicant’s mental health. In that regard, I am satisfied that the answer to that question is in the negative. [91] In addition to that, consideration has to be given to whether he has adopted strategies to enable him to deal with psychotic or other associable stressful situations. That is, has he undertaken any counselling, and if so, what and how often and when was the latest occasion. It should be noted that it is not sufficient for him to rely solely upon the fact that he has attended counselling to address any concerns about his ability to cope with stressful situations, but rather there should be evidence that the counselling enabled him to cope; and has greatly reduced the risk of him being susceptible in situations where his behaviour is of concern. [92] Having assessed all the features of this matter, I am satisfied that the correct and preferable decision is to confirm the respondent’s decision dated 17 August 2020 that the applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children Act. De-identification order [93] Notwithstanding the Working with Children Act expressly providing that review proceedings for child related employment must be held in private,67 there is no provision within the legislation for the exercise of a discretion to de-identify a party. Therefore, if a decision is made to de-identify a party, the provisions contained within the QCAT Act should be considered.68 [94] In exercising the discretion available to make a de-identification order, I may do so either upon the application of a party, or on my own initiative.69 In this matter, no application was made by either party. 67 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 361. 68 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66. 69 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3). -- 18 of 19 -- 19 [95] The discretion afforded to me within the QCAT Act extends to prohibiting the publication of the contents of a document or other thing produced to the Tribunal; evidence given before the Tribunal; or information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified.70 [96] In this matter, it was identified that DVL suffered a psychotic episode in 2014. Current issues relating to his mental health71 are also identified within his medical practitioner’s certificate.72 [97] Therefore, I am satisfied that it is not in the interests of justice for DVL to be identified.73 The appropriate step is to exercise my discretion to make a non- publication order and de-identify DVL and prohibit the publication of the contents of any document or thing filed in or produced to the Tribunal and any evidence given to the Tribunal by any witness to the extent that it could lead to his identity or any member of his family or any non-party to these proceedings. 70 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1). 71 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2)(b). 72 Respondent’s material at BCS-23. 73 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2)(e). -- 19 of 19 --