CTC v Director-General, Department of Justice and Attorney-General [2021] QCAT 406

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CTC v Director-General, Department of Justice and Attorney-General [2021] QCAT 406 PARTIES: CTC (applicant) v DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) APPLICATION NO/S: CML182-20 MATTER TYPE: Childrens matters DELIVERED ON: 18 November 2021 HEARING DATE: 23 July 2021 HEARD AT: Caloundra DECISION OF: Member Davies ORDERS: 1. The decision of the Director General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. 2. Publication of information that may enable the identification of the Applicant, the witnesses and the children affected by this decision is prohibited pursuant to section 66 of the Queensland Civil and Administrative Act 2009 (Qld). CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – where kinship carer subject to disciplinary action under child protection legislation – where reassessment of eligibility conducted because of disciplinary action – where positive notice and Blue Card cancelled – whether exceptional case LEGISLATION: Child Protection Act 1999 (Qld), s 4, s 133, s 134, s 135(1), s 140A Human Rights Act 2019 (Qld), s 13, s 23, s 25, s 26, s 58 -- 1 of 9 -- 2 CASES: Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s10, s 221, s 226, s 228, s 353, s 360, s 580 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: J Capper, Legal Officer, Department of Justice and Attorney-General REASONS FOR DECISION Introduction The Applicant held a working with children clearance and a Blue Card issued under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) from 2011 until 27 April 2020. On 27 April 2020 the respondent (‘Blue Card Services’) decided to cancel the Applicant’s positive notice and her Blue Card and to issue her with a negative notice (the ‘BCS Decision’).1 By her application to this Tribunal the Applicant seeks to have the BCS Decision reversed so that she may, once again, be issued with a Blue Card.2 For the reasons set out below, I have come to the view that the Applicant’s case is exceptional and that the decision of the Respondent is confirmed. Background to the BCS Decision The BCS Decision was made after Blue Card Services became aware that disciplinary action had been taken against the Applicant pursuant to the Child Protection Act 1999 (Qld) (‘CP Act’).3 The primary purpose of the CP Act is to provide for the protection of children.4 In so doing the CP Act regulates a system of what is known as kinship care.5 ‘Kin’ is a 1 Ex 3 (at BCS-11). 2 QCAT Application form filed on 18 May 2020. 3 Ex 3 Blue Card Services ‘Reasons’ document (at BCS-1). 4 CP Act s 4. 5 The principal kinship care provisions of the CP Act are contained in Chapter 4 which addresses Regulation of Care. -- 2 of 9 -- 3 defined term in the CP Act.6 Kinship care is where a relative of a child, who is of significance to that child, undertakes the primary care of the child. A prospective kinship carer must apply to the Chief Executive of the Department administering the CP Act for the issue of a kinship carer certificate.7 A kinship carer certificate is issued for a limited period8 but is capable of renewal.9 From in or about 2011 the Applicant was a kinship carer.10 In 2015 the Applicant and her life partner held kinship carer certificates for five children.11 By 2017 they were kinship carers for four children.12 As kinship carers, they were the subject of regular reviews by the Department administering the CP Act. A kinship carer is required to hold a working with children authority.13 Relevantly for this matter, the Applicant and her life partner held two kinship carer certificates. These certificates both commenced in early December 2017 and were for a period of 2 years.14 They were in respect of two female children. In March 2019 an incident occurred in the Applicant’s home – the sexual abuse of one of the two female children who were in the Applicant’s kinship care. The perpetrator was an adult male member of the Applicant’s household. Prior to turning 18, he had been in the Applicant’s kinship care. As a result of that incident the Department administering the CP Act commenced a Standards of Care Review on 10 March 2019.15 On 11 March 2019 a Harm Report was recorded by that Department and on the same day the two female children were removed from the care of the Applicant and her life partner. On 16 August 2019, the Department administering the CP Act cancelled the Applicant’s certificate of approval as a kinship carer.16 The basis for this cancellation was that the Applicant and the Applicant’s life partner, had ‘failed to protect the kinship children from sexual abuse by a household member.’17 As was required by s 140A of the CP Act, notice of this cancellation, described in the CP Act as disciplinary action, was given to Blue Card Services.18 After seeking, and being provided with further information regarding this disciplinary action,19 Blue 6 CP Act Schedule 3. 7 CP Act s 133. 8 CP Act s 133 (9). 9 CP Act s 134. 10 Ex 4 at NTP 69. 11 Ex 2 (the Applicant’s material) – the kinship carer renewal assessment report of February 2015. 12 Ex 2 (the Applicant’s material) – the kinship carer renewal assessment report of July 2017 at page 2 of that report. 13 CP Act, s 135(1)(b). 14 Ex 2. 15 Ex 3 at BCS-19 and 20 - letter from the Department of Child Safety, Youth and Women to Blue Card Services dated 21 November 2019. 16 Ibid. 17 Ibid. 18 That is, to the Chief Executive (employment screening). 19 The further information was provided to Blue Card Services under cover of a letter from the Department of Child Safety and Women dated 21 November 2019 (Exhibit 3 at BCS 19 and 20). -- 3 of 9 -- 4 Card Services then conducted a re-assessment of the Applicant’s eligibility to hold a Blue Card. Prior to making a final decision regarding whether the Applicant’s case constituted an exceptional case, Blue Card Services provided the Applicant with various documents including the disciplinary information that had been received and gave the Applicant an opportunity to respond.20 Following re-assessment, Blue Card Services made the BCS Decision on 27 April 2020 (i.e. the cancellation of the Applicant’s positive notice and Blue Card and the issue of a negative notice). The basis upon which Blue Card Services cancelled the Applicant’s positive notice is set out in the Blue Card Services ‘Reasons’ document.21 The BCS Decision is predicated on the basis that chief executive respondent was satisfied that the Applicant’s position constitutes an ‘exceptional case’.22 That is to say, a case where it would not be in the best interests of children for the Applicant to continue to hold working with children clearance.23 Legal framework for Tribunal decision The BCS Decision is a reviewable decision. Specifically, it is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act. A review of the BCS Decision by this Tribunal must be made in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Subsequent to the BCS Decision, the WWC Act has been amended. In considering a review of the BCS Decision it is the WWC Act, as amended, that must be applied to the subject matter of this review.24 Section 20 of the QCAT Act provides that: (a) the purpose of this review is to produce the correct and preferable decision; and (b) this review must be heard and decided by way of a fresh hearing on the merits. Further, in deciding this matter I have all the functions of the original decision maker.25 The object of the WWC Act is promote and protect the rights, interests, and wellbeing of children and young people in Queensland.26 It does this by a scheme requiring the development and implementation of risk management strategies and for the screening of persons employed in particular employment.27 20 Ex 3 at BCS 21-22 and the information that was attached to that letter. 21 Ex 3 at BCS 1- 11. 22 Ex 3 (at BCS 9-11). 23 WWC Act s 221(2). 24 WWC Act s 580. 25 QCAT Act s 19. 26 WWC Act s 5. 27 WWC Act s 10 addresses the question of ‘What is employment’. Employment under the WWC Act includes voluntary work. -- 4 of 9 -- 5 The WWC Act specifies principles for the administration of the Act. Those principles are that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.28 Further, the WWC Act provides that a person in the position of the Applicant should be allowed to continue to hold a blue card unless that person’s situation is an exceptional case. Therefore, in conducting this review by way of a fresh hearing, the principal issue for determination by me is whether or not an ‘exceptional case’ exists. That is, whether the Applicant’s situation is such that it would not be in the best of children for a positive notice to be continued. The term ‘exceptional case’ is not specifically defined in the WWC Act. As to what constitutes an exceptional case is a question of fact and degree having regard to the intent and purpose of the legislation. Further, it is a term of common use in everyday language and the application of the concept of exceptional case should be unhampered by any special meaning or interpretation.29 In determining whether the Applicant’s circumstances constitute an exceptional case it is necessary for me to consider under the WWC Act: (a) the principles for the administration of the WWC Act discussed above, (b) the matters that the WWC Act mandates that regard must be had. Relevantly, these matters are set out in ss 226(2) and 228(2) of the WWC Act. In addition, in a review such as this, the Tribunal is a ‘public entity’ and is therefore required to comply with s 58 of the Human Rights Act 2019 (Qld) (HRA). Subject to some presently irrelevant exceptions, that section prohibits a public entity from making a decision that is not compatible with human rights or without giving proper consideration to a human right that is relevant to the decision. The human rights that are relevant to the Applicant include the right to privacy and reputation30 and the right to take part in public life.31 The human rights of children are also relevant to this review. Those rights relevantly are that every child has the right to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’ as provided for in s 26(2) of the HRA. Evidence The material relied on by Blue Card Services consisted of: (a) The ‘Reasons’ document produced by Blue Card Services. (b) Details of the Applicant’s criminal history. (c) Disciplinary information relating to the Applicant. 28 WWC Act s 6. See also s 360. 29 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31] – [35]. 30 HRA s 25. 31 HRA s 23. -- 5 of 9 -- 6 (d) Material provided to Blue Card Services by the Applicant prior to the issue of the negative notice. (e) Copies of documents obtained by Blue Card Services as a result of the issue of a Notice to Produce. These documents came from the files of the Department of Child Safety, Youth and Women.32 The Applicant relied on her oral evidence, the evidence of her witnesses and documents she had filed with the Tribunal. These documents were her life story33 together with a bundle of other documents.34 These other documents consisted of her written response to the Blue Card Services ‘Reasons’ document35 and associated attachments such as kinship carer assessment reports, certificates and awards given to the Applicant and statements or references. It was apparent from the certificates and awards that the Applicant had attended a number of courses and seminars that were designed to assist her in fulfilling her role as a kinship carer. In her oral evidence the Applicant acknowledged her 1996 conviction under the Weapons Act 1990 (Qld) for possession of a weapon whilst not being the holder of a license. Her evidence was that the weapon was not owned by her but that she admitted to the charge to assist her then partner and to prevent that person getting into further trouble. A major part of the Applicant’s oral evidence addressed her history as a kinship carer and her comments on material before the Tribunal that was provided by the Department of Child Safety, Youth and Women pursuant to a Notice to Produce.36 Given the disciplinary action was the proximate cause for the BCS Decision, a principal focus of the Applicant’s oral evidence was the circumstances surrounding the sexual abuse of the female child under her kinship care that occurred in March 2019. The Applicant gave evidence of the difficulties she faced in managing her household as it was constituted at the time of the incident in March 2019. The household members at that time consisted of the Applicant and her life partner (who also held kinship care certificates), the two young adult males, and the two female children who were in the Applicant’s kinship care. The young adult males had been in the Applicant’s and her partner’s kinship care from about 2011 until they turned 18 years of age. The Applicant’s evidence was that she had a continuing concern for the welfare of these young males because of the emotional bond that had developed whilst she was responsible for their upbringing. Further, this concern was enhanced by the fact that they, or at least the perpetrator of the sexual abuse, had a degree of intellectual impairment. To manage this complex household dynamic the Applicant’s evidence was that the young adult males lived not in the house but in caravans close to her house. In addition, the Applicant sought to manage the interaction between the female children 32 The Notice to Produce order was made by the Tribunal on 25 September 2020. 33 Ex 1. 34 Ex 2. 35 The ‘Reasons’ document is part of ex 3 at BCS 1- 11. 36 The Notice to Produce was issued following an application by Blue Card Services. The Tribunal order was made on 25 September 2020. The documents provided pursuant to the Notice to Produce were in evidence as ex 4. -- 6 of 9 -- 7 and the young adult males by close supervision and implementing household rules regarding such matters as access to bedrooms and shower times. Despite these efforts the younger female child was subject to the sexual assault in March 2019. The Applicant expressed what I consider to be genuine remorse at her failure to prevent the sexual abuse but highlighted the difficulties that she faced in managing her domestic situation with what she considered insufficient support from the relevant government department. In addition to her evidence, the Applicant called two witnesses who gave oral evidence. Both of these witnesses had also provided written references.37 Her first witness was a state school principal and administrator. This witness gave evidence of her observed interaction between the Applicant and the children in her care and of the Applicant’s involvement in the state school community through such bodies as the parents and citizens organisation and the school tuckshop. Her evidence was that the Applicant had the love and respect of the children in her care and that those children were well cared for. The Applicant’s second witness was a medical practitioner. This witness’s knowledge of both the Applicant and the children under her care stemmed from her position as a local general practitioner. The doctor’s evidence was based on her observations of the Applicant and the children under her kinship care when she brought the children for medical appointments. The doctor’s evidence was, in summary, that the Applicant was caring toward the children she looked after. I accept the evidence of these witnesses but note that neither of them had a full understanding of the sexual assault in March 2019 - the event that gave rise to the disciplinary action taken against the Applicant under the CP Act. The Applicant also placed reliance of a written reference by another state school principal. This witness was unavailable to give oral evidence. In the circumstances I have considered the written reference but tempered the weight to be accorded to what is set out in that reference on the basis that it was not able to be tested. Further, the relevance of the matters set out in the written reference were of limited assistance in that the observations related to events prior to August 2012. Consideration Is the Applicant’s case an exceptional one? Section 226 The Applicant has been convicted of an offence. As a result, s 226 of the WWC Act is relevant. That conviction was in 1996. It was for possession of a weapon whilst not being the holder of a licence issued under the Weapons Act 1990 (Qld). 37 These references are contained in ex 2. -- 7 of 9 -- 8 This offence is neither a serious nor a disqualifying offence. The Applicant was fined $300 and was ordered to pay court costs. The passage of time, without further offence, may not mean that the risk of further offending has been reduced.38 However, when the offence was committed is a matter that I must consider.39 Here, the conviction was over 26 years ago and there is no evidence that the Applicant has had any further encounters with the criminal justice system. A further mandatory consideration is set out in s 226(2)(iv). It is the nature of this offence and its relevance to employment that involves or may involve children. A firearms offence may have relevance to employment that involves or may involve children. The Applicant’s evidence was that, although there were children in the house at the time of the offence, the firearm was kept in a place where it was not accessible to children. In the circumstances, I do not consider that this offence, by itself, makes the Applicant’s case an exceptional one. Section 228 and other matters This section of the WWC Act addresses the situation where disciplinary information40 exists. The section sets out certain matters that I must have regard to in deciding whether the Applicant’s case is exceptional. Those matters are set out in s 228(2). They are as follows: (a) The decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order. (b) Any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in paragraph (a), and the reasons for the decision or order. (c) The relevance of the disciplinary information to employment, or carrying on a business, that involves or may involve children. (d) Anything else relating to the disciplinary information that I reasonably consider to be relevant to the assessment of the person. The decision of the decision maker was, in summary, that the Applicant was responsible for emotional harm and physical harm (due to sexual abuse) of a child in her care.41 The nature of the conduct that formed the grounds for disciplinary action against the Applicant included that the Applicant and the other carer failed to provide adequate supervision, did not respect the children’s dignity and rights, failed to contribute to 38 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [55]. 39 WWC Act s 226 (2)(a)(iii). 40 Disciplinary information is defined in the WWC Act to include information received under s 140A of the CP Act. 41 Ex 3 at BCS 19. -- 8 of 9 -- 9 the children’s positive self-regard and failed to implement strategies identified as beneficial to the care and protection of the children.42 As to item (b) above, although the Applicant instituted proceedings under the CP Act for a Tribunal review of the decision, this review did not progress to a review hearing. The Applicant’s evidence was that the review was terminated on legal advice and because she considered a hearing could cause further distress to the children who had been in her kinship care. As a result, there has been no review (or finalised appeal) of the decision relating to the disciplinary information. In relation to items (c) and (d) above, I have considered the evidence as it relates to the disciplinary information and related matters. The disciplinary information that I consider is of particular relevance is the failure of the Applicant to provide adequate supervision to the female children in her care as a result of which one of the female children was sexually abused. Conclusion Whilst I understand that the Applicant was in a difficult position managing the household dynamics, I am of the view that the implementation of household protocols and behaviour restrictions combined with her and her partner’s vigilance were inadequate. This is particularly so given the vulnerability of the female children and the history of sexualised behaviour exhibited by the perpetrator. Indeed, I consider that the protocols and vigilance were a recognition of the potential danger that became manifest. I consider that the Applicant failed to give sufficient priority to the interests of the children in her kinship care in March 2019 and has failed to fully accept or have insight into the harm that has resulted. In view of the paramount consideration that I must give to the welfare and best interests of a child, I conclude that the Applicant case is exceptional within the meaning of s 221(2) of WWC Act. In conducting this review, I have considered the HRA and am satisfied that the decision that I have come to will have the proper purpose of promoting and protecting the rights, interests, and wellbeing of children.43 In conclusion, I consider that given the circumstances that gave rise to the disciplinary action taken against the Applicant, in particular the sexual assault, it is not in the public interest to publish information that may enable the identification of the Applicant, any witnesses for the Applicant and the children affected by this proceeding. As a result, pursuant to s 66 of the QCAT Act, I order that this decision be published in a de-identified format. 42 Ibid. 43 HRA s 13(2)(b). -- 9 of 9 --