BMR v Director General, Department of Justice and Attorney General [2020] QCAT 472

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BMR v Director General, Department of Justice and Attorney General [2020] QCAT 472 PARTIES: BMR (applicant) v DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) APPLICATION NO: CML299-18 MATTER TYPE: Childrens matters DELIVERED ON: 13 November 2020 HEARING DATE: 26 February 2020 HEARD AT: Townsville DECISION OF: Member Pennell ORDERS: 1. The decision of the Director General, Department of Justice and Attorney-General dated 19 September 2018 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 set aside and substituted with the decision that it is not an exceptional case. 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 – application for a positive notice and blue card – negative notice issued – the applicant has considerable criminal history including an entry for attempted robbery as a juvenile – whether attempted robbery is defined as a serious offence – where other entries on criminal history relate to assault and public disorder offences – applicant underwent counselling – whether the protective factors negate the risk factors – whether an exception case exists -- 1 of 19 -- 2 EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF EVIDENCE – ORDERS – NON- PUBLICATION OF IDENTITY – de-identifying of the proceedings undertaken by the Tribunal on its own initiative – the publication of the identity of the applicant, witnesses and non-parties would be contrary to public interest and would lead to the identity of children Criminal Code Act 1899 (Qld), s 1, s 335, s 409(1), s 411(1), s 411(2), s 412 Penalties and Sentences Act 1992 (Qld), s 4, s 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 20(1), s 20(2), s 24(1), s 28(2), s 28(3)(a), s 28(3)(b), s 28(3)(c), s 66, s 66(2) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15(1)(a), s 167(1), s 221(2), s 223, s 225(1)(b), s 225(2), s 360, Schedule 2, Schedule 4 Chief Executive Officer, Department of Child Protection v Scott (No 2) (2008) WASCA 171 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Kent v Wilson [2000] VSC 98 Kioa v West (1985) 159 CLR 550 Perry and Brown 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 The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228 APPEARANCES & REPRESENTATIONS: Applicant: T C Schmidt of Counsel instructed by C Pereira, Principal Solicitor of Aboriginal and Torres Strait Islander Women’s Legal Service NQ Respondent: N Rajapakse, In-House Solicitor -- 2 of 19 -- 3 REASONS FOR DECISION Introduction [1] The applicant (‘BMR’) applied for a positive notice and blue card under the provisions of the Working with Children (Risk Management and Screen) Act 2000 (Qld) (‘Working with Children Act’). The respondent rejected BMR’s application and issued her with a negative notice.1 [2] In rejecting BMR’s application, the respondent assessed that it would not be in the best interests of children for a positive notice and blue card to be issued. Amongst other things, that assessment was based on BMR’s police information that consisted of a number of offences, including a conviction for attempted robbery that she committed when she was only aged 13. The respondent considered that conviction to be a serious offence as defined within the Working with Children Act. BMR has applied to the Tribunal for a review of the respondent’s decision.2 The Tribunal’s role [3] Conditional on the provisions of the Working with Children Act, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’), Tribunal proceedings are conducted at the discretion of the Tribunal. When employing that discretion, the Tribunal is required to apply fair procedures that are adapted to the circumstances of each particular case.3 The rules of natural justice must be observed,4 and the Tribunal must act fairly and in accordance with the substantial merits of the case.5 [4] In the conduct of the proceedings, there is no presumption that the original decision is correct6 and the Tribunal has the discretion to inform itself in any way it considers appropriate.7 Although not bound by the rules of evidence,8 this does not generally mean that the Tribunal should overlook those rules. Afterall, every effort or attempt must be made to administer substantial justice and methods of inquiry should not be adopted that unnecessarily places one party at a disadvantage whilst favouring the evidence of the other party.9 [5] Returning to the Working with Children Act, an objective of this legislation is the promotion of, and the protection of the rights, interests and wellbeing of children in Queensland.10 Notwithstanding that, the overarching principle is that the welfare and best interests of children are paramount and any decision reached by the 1 Negative notice issued on 19 September 2018. 2 BMR’s application was filed on 25 October 2018. 3 Kioa v West (1985) 159 CLR 550, 585. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a). 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2). 6 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9]. 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c). 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b). 9 The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228, 256. 10 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5. -- 3 of 19 -- 4 Tribunal must be based on the merits of the application and the evidence before it at the time of the review hearing.11 [6] After an evaluation of the available material and evidence, it is the Tribunal’s responsibility to reach the correct and preferable decision12 in regard to BMR’s eligibility to work with children and young people. When reaching that correct and preferable decision, a discretion is afforded to the Tribunal to either confirm or amend the respondent’s original decision; or set aside the respondent’s original decision and substitute that decision with its own decision; or set aside the respondent’s original decision and return the matter for consideration to the respondent with directions that the Tribunal considers appropriate.13 An ‘exceptional case’ [7] In the wake of the legislative objective, the Tribunal’s focus is to promote and protect the rights, interests and wellbeing of children from future harm. The paramount consideration is the welfare and best interests of children.14 [8] Although the Working with Children Act gives no definitive description of the term ‘exceptional case’, the term has been found by the courts to mean unusual, special and out of the ordinary course.15 The long standing principle established by the Queensland Court of Appeal, and adopted by the Tribunal is that it would be unwise to lay down any general rule about what an exceptional case is; discretion should always be used and each case should be considered on its own merits and facts.16 When applying this principle to any case, it is important for the facts to be examined in the light of the legislation, the legislative intention and the interests of the parties involved.17 The applicant’s antecedents and police information [9] BMR’s background and upbringing was fractured at any early age when her parents separated. In those formative years, she experienced significant instability in her home life. She moved between the households of both parents. At one point when she was in the care of her mother, she attended eight different schools between Cairns and the Gold Coast.18 At times during the periods when she lived with her father, she experienced his strict discipline and physical abuse.19 Overall, her childhood is not one that she ever wants her own children to experience. Her parents were often not available to her, and they were themselves unstable in their own private lives. Punishment was often harsh, and she gave an example of her 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2); Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360. 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1). 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1). 14 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 360. 15 Kent v Wilson [2000] VSC 98, [22] referencing the Oxford English Dictionary. 16 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34] per Philippides J endorsing the approach taken 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 Brown Patents (1930) 48 RPC 200. 17 Kent v Wilson [2000] VSC 98, [22]. 18 Applicant’s affidavit filed 3 June 2019, paragraph 18. 19 Applicant’s affidavit filed 3 June 2019, paragraph 19. -- 4 of 19 -- 5 mother removing all her possessions from the bedroom, including her bed. She was fed bread and water for a week and then ‘kicked out’ of her home and sent to live with her father. [10] By the time she became a teenager, BMR was rebelling at school. She began mixing with the wrong crowd and was expelled from school. She was too scared of the consequences of how her father would react, so she ran away and stayed with her auntie. From there it would seem that her life went into a downward spiral. She started couch surfing at various houses belonging to friends, but this did not last long, and she was soon homeless and living on the streets. It was during this part of the life that she foolishly attempted to steal a handbag from a member of the public. [11] BMR has considerable and unflattering entries recorded in her police information. Her criminal behaviour commenced when she was aged only 13 and the first entry on her police information relates to two charges consisting of attempted robbery20 and common assault.21 She was later placed on probation for a period of 12 months and no conviction was recorded. [12] The facts of that matter relate to BMR assaulting a business owner and attempting to steal her handbag. The complainant owned a small business, and after locking up shop one evening she was confronted by BMR who said, “Excuse me miss”. What followed was BMR punching the complainant in the face and upper body. She then grabbed and pulled at the complainant’s handbag. When the complainant resisted, BMR again punched her. The complainant screamed and BMR ran off. Keeping BMR under observation, the complainant telephoned the police. [13] Although BMR had walked away, she returned to the complainant and said, “you remember my face, you better remember my face because my family is going to come after you”. She again punched the complainant in the upper torso, head, arms and face. The complainant screamed for help and a passing motorist stopped to assist her. BMR then abused the motorist and walked off. Shortly afterwards the police located BMR approximately 500 metres away. She was taken to the police station where she became extremely abusive, hostile, and uncooperative with police. She refused to participate in a formal interview. [14] In explaining her behaviour on that occasion, BMR said that she felt remorseful when she read the facts in the respondent’s material. Although she did not know it at the time, she now realises the trauma the complainant experienced. She explained that she later attended a youth justice conference where she met the complainant face to face. The complainant wanted to know why BMR singled her out, to which BMR explained that she had not eaten for three days, she was homeless and when she saw the complainant turn the lights off in her shop, she decided to take advantage of the situation. [15] BMR acknowledged that she was only thinking of herself at that time as she was trying to get money to buy food. She gave no thought about how it affected the complainant. She apologised to the complainant during the youth justice conference, and that apology was accepted. BMR now realises how self-centered she was at the 20 Criminal Code Act 1899 (Qld), s 412. 21 Criminal Code Act 1899 (Qld), s 335. -- 5 of 19 -- 6 time and she gave no thought of the impact of her actions upon the complainant, or the complainant’s family. [16] Following her arrest for the offence, she was sent to youth detention for a period of two months. During that time she only received three phone calls from father, in which he reinforced the consequences of her decision not to go home the day she was expelled from school. At her next court appearance, she was granted bail to live with the father. Instead, she declined that opportunity and agreed to reside at a youth shelter. [17] It seems that notwithstanding the multiple entries in her police information, the consequences of her actions by trying to steal the complainant’s handbag had some impact upon her. That is, she is never again committed a similar offence. She explained to the Tribunal that attending the youth justice conference with the complainant made her realise the consequences of your actions. She added that with the benefit of now being older and more mature, she recognises the point her father was trying to make about her choosing not to go home to him that she was expelled from school. However, at the time she was too scared to return home, as it was not safe place.22 Perhaps another deeming feature was her young age and the level of immaturity she had at that time. [18] It appears that after the attempted robbery charge was finalised in court, BMR went into the care of a foster family. This family lived at a location far away from the influences that impacted upon BMR as a young girl. She described her time with that family as positive, and they were a significant influence upon her. [19] At age 16, BMR enrolled in an agriculture college and attained a Certificate III in Agriculture. She later travelled to the Northern Territory for work placement. Over the next couple of years, she worked in various rural locations as a Jillaroo. [20] Although her foster family may have a positive influence upon her when she was in their care, it seems that once left to her own devices, she had little control over own emotions. Her consumption of alcohol at times contributed to that loss of control. [21] BMR’s first entry onto her police information as an adult took place when she was aged 18. She does not remember the exact details of this offence but does recall that at the time she had broken her elbow in a workplace incident. She thought that her behaviour involved drinking alcohol and swearing. [22] The police information suggests BMR had been refused entry to a nightclub because she was intoxicated.23 Police officers were parked in their vehicle across the road from the nightclub and were able to observe her behaviour. She was seen to lash out towards one of the security officers when he refused her entry into the nightclub. When spoken to by the police, BMR was unsteady on her feet, her speech was slurred and rambling, and she had a strong smell of alcohol on her breath. She tried to make a complaint about incidents she alleged were committed against her by security staff at this same establishment some three years earlier. As she was intoxicated, the police officers advised her to attend the police station the following 22 Respondent’s material, BCS-86 – BCS-87. 23 On 15 May 2010. -- 6 of 19 -- 7 day to make her complaint. She responded by making obscene gestures to the officers and she referred to them in an insulting and derogatory manner. Consequently, she was arrested. She resisted being arrested and when placed into the rear of the police vehicle, she kicked out violently to a point and had to be further restrained. She appeared in court three days later and pleaded guilty.24 She was given a global penalty and fined $250. No conviction was recorded. [23] A month later,25 she was again arrested for public nuisance. This time she was involved in a consensual fight with another woman in a public place. Her behaviour interfered with the peaceful passage of the public through that area. She pleaded guilty to the offence and was fined $300. No conviction was recorded. [24] Almost 12 months later, BMR was back before the court on another public nuisance charge. A fight took place between a number of people in a suburban street.26 CCTV footage of the scene showed BMR participating in that fight. She later voluntarily attended the police station and admitted to her involvement. She said that she got upset with the person she was fighting because that person accused her of sleeping around. Upon her appearance in court, she pleaded guilty27 and was fined $600 with no conviction recorded. [25] In the time between her involvement in the street fight just mentioned, and her ultimate appearance in court for that offence, she was involved in another public nuisance incident.28 On this occasion, she had an altercation with other females outside a nightclub. When she later appeared in court, she pleaded guilty and was fined $700. A conviction was recorded. [26] Almost two months after that court appearance,29 she was again charged with a public nuisance offence. This time, a large group of people were involved in street fight. This all took place within the local CBD. When police attended, they initially arrested two males. BMR approached the arresting police officers in what was described as a belligerent, abusive and inappropriate manner. She swore at the officers and called them insulting and derogatory names. Unsurprisingly, her behaviour led directly to her arrest. When she appeared in court, she was placed on probation for a period of nine months. A conviction was recorded. At a later subsequent time,30 she reappeared in the court where that probation order was revoked, and instead, the court ordered her to perform 40 hours community service. [27] On Anzac Day 2012, BMR was again arrested for public nuisance. She was also charged with the offence of common assault. When she appeared in court, she pleaded guilty to those offences.31 It is noted that no specific details were provided within the respondent’s material about those offences and BMR could not assist the Tribunal as to the circumstances of those events. On all charges she was fined $450 and a conviction was recorded. 24 On 18 May 2020. 25 On 19 June 2010. 26 On 16 May 2011. 27 On 29 June 2011. 28 On 5 June 2011. 29 On 29 October 2011. 30 16 February 2012. 31 On 26 June 2012. -- 7 of 19 -- 8 [28] Some 15 months later,32 she was again arrested. This time she was charged with common assault. Again, no specific details were provided in the respondent’s material and BMR could not recall of the events. Nevertheless, when she appeared in court, she was fined $500. A conviction was recorded. 33 [29] In spite of relocating to the opposite end of the state and away from any influences that she may have been subjected to, it seems that BMR’s behaviour in public continued to be offensive.34 On this occasion, witnesses saw BMR park her motor vehicle outside a bank. She left the vehicle’s engine running and went inside, leaving a small child alone inside the vehicle. One of the witnesses approached her inside the bank and challenged her about leaving the child inside the car. The witness was told to mind her own business. When BMR left the bank, the other witness used her mobile phone to take a photograph of BMR’s vehicle. BMR approached this witness, yelled at her and demanded that the photograph be deleted. She also threatened to assault the witness. [30] Both witnesses managed to get into their own vehicle and drive away. BMR followed them in her vehicle, sounding her horn and driving closely to their vehicle. Fearing a further confrontation, the witnesses drove to the local police station. When they got there, BMR pulled in behind them and was still yelling obscenities at them. She also threatened to ram their vehicle. BMR only drove away when the witnesses entered the police station. [31] When interviewed by police about this incident, BMR made full admissions regarding her language and the threats towards the witnesses. She apologised for her behaviour and when asked about leaving her child unattended in the motor vehicle, she said that the child was asleep, and not wanting to wake the child, she left the engine running so that the air-conditioner could be left operating. [32] BMR was not charged with any offence involving her child inside the unoccupied vehicle; however, she was prosecuted for a public nuisance offence. She later appeared in court where she pleaded guilty.35 No conviction was recorded, and she was fined $500. [33] Fifteen months after her court appearance for the offence just discussed, BMR had returned to live in the northern part of the state. At 4:55am one morning, police attended an address to give a noise abatement direction.36 That direction was for the abatement of noise for a period of 96 hours. A little over three hours later, police responded to a further complaint about noise emitting from the same house. When they arrived at the house, several people were found drinking alcohol and listening to loud music. A request was made for the music to be turned down. BMR identified herself as an occupant of the premises. [34] The police informed BMR of the earlier direction for the noise to be abated, and that direction had been given to another occupant of the house. BMR told police that person was asleep inside the house. The police attempted to enter the premises to 32 On 12 September 2013. 33 On 6 November 2013. 34 On 10 April 2014. 35 On 9 July 2014. 36 On 11 October 2015. -- 8 of 19 -- 9 speak to him, but BMR stood in the doorway and refused their entry. Despite being repeatedly warned she would be arrested if she did not move aside; BMR continued her behaviour. She was arrested and charged with obstructing the police in the performance of their duty. She later appeared in court and pleaded guilty and was fined $300.37 No conviction was recorded. [35] Almost two years later, BMR was charged with an offence under the Liquor Act.38 Although no particulars of this matter were contained within the respondent’s material, I do note the police offered no evidence and the charge was withdrawn.39 [36] The last entry on BMR’s police information relates to an incident inside a Casino.40 This seems to be connected some way to the offence that the police offered no evidence of. Notwithstanding that, BMR was charged with the offence of common assault and failing to leave licensed premises. [37] BMR told the Tribunal that she overheard a group of women talking about her brother who had recently been arrested on criminal charges. She became angry and when the security personnel intervened, she retaliated because she believed that she was referred to in a racist manner. She later appeared in court and pleaded guilty. Convictions were recorded for both offences and she was placed on probation for a period of six months. [38] On an overall examination of those entries into BMR’s police information, it shows that on most occasions, the court punished her by imposing a fine, with the exception of orders relating to probation and community service. It appears that she complied with the conditions of both of those community based orders. [39] Ultimately, consideration has to be given to the facts, nature, and the frequency of BMR’s offending, and whether those features provide any basis for a conclusion that it would not be in the best interest of children if a positive notice were issued to her. That consideration has to be applied along with other determinations such as whether BMR has displayed insight into her behaviour and conduct, and whether she has identified and addressed any associated triggers for that behaviour. [40] BMR is now a more mature person, she has three young children, and she has a partner who supports her. She told the Tribunal the most serious aspect of her offending; being the attempted robbery conviction, might be now forgiven having regard to the passing of time. It is acknowledged that her lack of maturity at the time of that offence would mitigate it to some degree. [41] BMR does not quibble with a finding that at the time the respondent made the decision to issue her with a negative notice, the respondent would not have been in possession of material to suggest that BMR had in place positive strategies to deal with situations of conflict that may arise in the future. [42] Since making her application, BMR has made efforts to address those concerns raised by the respondent. She has sought counselling from two psychologists and 37 On 28 October 2015. 38 On 23 July 2017. 39 On 21 August 2017. 40 On 23 July 2017. -- 9 of 19 -- 10 provided reports from those professionals as part of her case. BMR says she now has the capacity of a greater understanding of her concerning behaviour and how that impacts upon others. She has gained new insights and has learned to deal with situations without resorting to outbursts of violence. She is able to see things through the perspective of others and recognises and acknowledges that alcohol can exacerbate a situation. She said she has put in place strategies to address that issue. [43] There has been the passing of almost three years since BMR last committed any offence. BMR’s argument is that during that intervening period, she has worked conscientiously and developed a more mature and appropriate approach to deal with issues that may arouse her emotions. She said she has developed coping strategies, and implemented those strategies accordingly. Other evidence to support BMR’s application [44] SD, a Human Resource Manager from company for whom BMR works,41 provided a character reference for her. Understandably, when the Tribunal receives this type of evidence, the Tribunal has discretion as to what weight is placed upon it. Notwithstanding that, the respondent did not challenge the character reference and its contents. [45] BMR and SD first met at a time when BMR was studying for her hospitality certificate and undertaking work experience at a local leagues club. Since June 2019, BMR has been employed at the leagues club as a customer service attendant and because of her work ethic and initiative within the workplace, she has progressed to now being considered for a supervisory role. [46] SD confirmed that BMR showed maturity and integrity and is a polite, cooperative and composed person. Through BMR’s outstanding work ethic and ability to work in a diverse team, along with the professionalism she shows, her employer holds her in high regard. [47] The Tribunal heard evidence from TT. He told the Tribunal that he has known BMR since about mid-2017. They met through his involvement with a local community centre where BMR was undertaking student placement at the time of her application for a positive notice and a blue card. He found that she was very respectful, polite, courteous and passionate in helping others. In regard to his observations of BMR’s interaction with children, he said that she was very calm, gentle, happy and patient. She also interacted with the children of other participants at the community centre and her personality was described as lovely and bubbly. [48] Further evidence was provided at the hearing from SM and AD. They are both individually registered and practising psychologists. When SM was asked to comment on the extent to which BMR had insight into her offending behaviours, and its impact on society, the victims and any children associated with BMR, SM said BMR had developed significant insight into her previous offending behaviours. SM went on to say that the events associated with BMR’s last recorded entry on her police information could be fairly described as a watershed moment in BMR’s life. The events of that evening served as a dividing line for her between the perpetration 41 Exhibit 1. -- 10 of 19 -- 11 of violence as a coping strategy for the resolve to find other ways of dealing with or managing her emotions. It was described by SM as a catalyst for BMR to change. She now understands the need to change your behaviour in order not to pose a risk of harm to the best interests of children or other vulnerable individuals with whom she might be responsible. [49] When asked to respond to what risk factors or triggers, if any, continue to be present which could contribute to a risk that BMR would further offend, SM opined that BMR’s risk of reoffending was greatly reduced by her now having an understanding of the use of responsiveness or high order cognitive functioning (thinking, reasoning, remembering) to manage her behaviour and her emotions. [50] In regard to the implementation of protective factors to reduce the risk of further inappropriate behaviour, SM said one of the factors implemented by BMR was to relocate away from the locality that had the most influence upon her past concerning behaviour. Along with her partner and her three children, she now lives almost 400 kilometres from where much of her offending behaviours occurred. It seems that BMR has now acquired a commitment to raise her children in an environment that is free of violence, substance abuse and vengeful thinking. BMR has expressed a desire to be a good role model to children and teach them by example. [51] In SM’s professional opinion, BMR had made genuine and successful efforts over the past two years as an active participant in her own recovery and rehabilitation. SM opined that BMR was able to assimilate the value of being an active and productive member of society through her commitment to lawful behaviour. Furthermore, she aspires to make a commitment to the community.42 [52] AD reported that BMR presented as a sensible, grounded and practical woman despite suffering depression and exhibiting with severe levels of stress. AD observed no indications that BMR was experiencing suicidal ideation or had any intentions of harming yourself or others. If there were any suicidal ideation in life, BMR reported that this was at a stage when she was homeless as a 13 year old child. [53] In her assessment of BMR, AD said that she had responded well to treatment and with continued therapy she should be able to alter her responses and change aggressive behaviour to assertive behaviour. AD did not see any signs of BMR posing any threat to children. The respondent’s case [54] After considering all the material, and having regard to the paramount consideration under the legislation, the respondent was satisfied that to issue BMR with a positive notice and blue card would offend the objectives of the Working with Children Act. In reaching its decision, the respondent arrived at a number of conclusions. [55] Firstly, the respondent considered that BMR had a conviction for a serious offence as defined in the Working with Children Act. To reinforce its decision, the respondent referred to the Tribunal’s earlier determination that the legislation places a barrier to persons with a conviction for a serious offence from working with children, and the proper inference that must be drawn is that it would harm the best 42 SM’s affidavit, Annexure 3. -- 11 of 19 -- 12 interests of children if a person with a conviction of a serious offence was to work with children, unless it is an exceptional case.43 [56] Although the respondent acknowledged BMR’s argument that since her last conviction she had made a number of adjustments to her life, the respondent reinforced the proposition that changes in BMR’s circumstances simply mounted to her now living in a law-abiding manner as society expects. By BMR functioning at a level which society expects is generally considered to be the ordinary course of how a person is to conduct their life. That does not make it exceptional.44 [57] The respondent accepts that BMR committed the attempted robbery offence some fourteen years ago when she was very young. However, although her youth and immaturity at the time mitigates the offence to some degree, the seriousness of the offence and the ongoing entries into her police information over the next eleven years somewhat negated that mitigation. [58] In assessing BMR’s submissions, the respondent gave serious consideration to her personal circumstances and gave weight to the assertions that she was continually working towards a better life for herself and her three children, along with having a desire to give back to the community by working with youths to help them make better choices. [59] The most serious offence committed by BMR occurred during the period of her life when she lacked guidance as a child and had poor associations with others. This was not assisted by the overarching feature in the police history of her continual propensity to engage in violent and antisocial behaviour up until as recently as July 2017. This was despite the interventions by authorities and BMR being provided with many opportunities to rehabilitate. There was a significant concern regarding the entries into her police information and this suggested an ongoing cycle of reoffending, with the most recent offence occurring very soon after the expiration of a period of probation. [60] Although acknowledging BMR emphasised the importance of obtaining her blue card in order to further her career, the ultimate issue for the respondent making its decision was whether an exceptional case existed. The respondent appropriately considered the paramount principle relating to the best interests of children, and quite correctly applied the concept that any hardship or prejudice suffered by BRM by such a determination was irrelevant to the respondent’s determination of the issue.45 [61] Based on the information before the respondent at the time, the original decision maker was not satisfied that BMR’s circumstances suggested that hers was an exceptional case in which it would not harm the best interests of children and young people for a blue card be issued to her. 43 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27, [46]. 44 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27, [47]. 45 Chief Executive Officer, Department of Child Protection v Scott (No 2) (2008) WASCA 171, [23]. -- 12 of 19 -- 13 [62] It is noted that an important feature in the respondent’s assessment were concerns raised over BMR’s 2006 conviction relating to the offence of attempted robbery. In regard to that conviction, BMR’s police information provides the following entry46 – QLD [PLACE] CHILDRENS COURT OF QUEENSAND 04/09/2006 CC ATTEMPTED ROBBERY – ACTUAL VIOLENCE /OVERCOME RESISTANCE (ON 28.02.06) CC COMMON ASSAULT (ON 28.02.2006) ON ALL CHARGES: NO CONVICTION RECORDED PROBATION 12 MTHS SPECIAL CONDITIONS: 1. YOUTH JUSTICE CONFERENCE AGREEMENT TO BE COMPLETED 2. TO ATTEND ANGER MANAGEMENT PROGRAM. 3. TO ATTEND COGNITIVE SKILLS COURSE 1. [63] I accept that when the respondent considered all of the circumstances surrounding BMR, including her police information, there was a degree of focus upon her conviction for that offence. Both the respondent, and BMR consider that this offence is a serious offence as defined in the Working with Children Act.47 I respectfully disagree. Is attempted robbery a serious offence? [64] The Working with Children Act provides that subject to other provisions of the legislation, a negative notice must be issued to a person if the Chief Executive is aware that person has been convicted of a serious offence.48 [65] Notwithstanding the significant amount of material provided to the Tribunal by the respondent to assist it to make the correct and preferable decision, I noted that absent from that material was the indictment presented to the court when BMR was convicted of attempted robbery. It seems that the best and current available material to explain the facts of that matter are contained in the police Court Brief (‘QP9’). The QP9 suggests that BRM was charged with the offence of attempted robbery pursuant to the provisions of section 412 of the Criminal Code Act 1899 (Qld) (‘Criminal Code’). [66] Although the terms ‘conviction’, ‘sentence’ and ‘offender’ are not defined in the Working with Children Act, the Penalties and Sentences Act 1992 (Qld) provides a description of those terms. A ‘conviction’ means a finding of guilt, or the 46 Respondent’s material, BCS-25. 47 Respondent’s material, BCS-17; Exhibit 2, applicant’s submissions, page 8, paragraph 28; Exhibit 3, respondent’s submissions, page 9, paragraph 30. 48 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 225(1)(b), subject to the provisions of s 223 and s 225(2). -- 13 of 19 -- 14 acceptance of a plea of guilty, by a court. An ‘offender’ is someone who is convicted of an offence, whether or not a conviction is recorded. The term ‘sentence’ means a penalty or imprisonment ordered to be paid or served, or another order made, by a court after an offender is convicted, whether or not a conviction is recorded. This includes an order made by a court to deal with the offender for an offence instead of passing sentence.49 [67] When a court convicts an offender, discretion is afforded to the court as to whether or not a conviction should be recorded. In considering that discretion, the court is required to have regard to all circumstances of the offending, including the nature of the offence, character and age of the offender at that time, what impact recording a conviction would have upon the offender so far as their economic or social wellbeing, or on their chances of finding employment.50 [68] In circumstances where a person has a conviction recorded for a serious offence, this does not automatically mean that consideration cannot be given to the issuing of a positive notice. If the Chief Executive is satisfied that BRM’s case is one that it would not harm the best interests of children for a positive notice to be issued, then that positive notice may be issued.51 [69] BMR has a number of entries listed on her police information, made up from public nuisance offences, obstructing a police officer, common assault and offences against the Liquor Act. None of those offences are defined within the Working with Children Act as serious or disqualifying offences.52 By far, the most serious offence she committed was attempted robbery and although she was a juvenile at the time, that does not make the offence any less serious. [70] The term, provisions and elements of the offence of attempted robbery are contained within its very own section of the Criminal Code as distinct from the offence of robbery.53 Section 409(1) of the Criminal Code provides that the act of robbery occurs when – Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery.54 [71] The punishment for the offence of robbery is not defined within the definition of robbery, but can be found within its own specific definition of the Criminal Code that provides for the circumstances under which the offence is committed. 411 Punishment of robbery (1) Any person who commits the crime of robbery is liable to imprisonment for 14 years. 49 Penalties and Sentences Act 1992 (Qld), s 4. 50 Penalties and Sentences Act 1992 (Qld), s 12. 51 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 225(2). 52 Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedules 2 and 4. 53 Criminal Code Act 1899 (Qld), s 412. 54 Criminal Code Act 1899 (Qld), s 409(2) provides that an indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer. -- 14 of 19 -- 15 (2) If the offender is or pretends to be armed with any dangerous or offensive weapon or instrument, or is in company with 1 or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, the offender wounds or uses any other personal violence to any person, the offender is liable to imprisonment for life. (3) The Penalties and Sentences Act 1992, section 161Q also states a circumstance of aggravation for the crime of robbery. [72] Initially, the punishment provision outlines that any person who commits the crime of robbery is liable to imprisonment for 14 years.55 Importantly for any determination in blue card matters is the circumstance of aggravation penalty provided within section 411(2). If an offender’s conduct falls within the ambit of that sub-section, the offender is liable to imprisonment for life. [73] In contrast to that, BMR’s conviction is for the offence of attempted robbery. This offence is distinct from the offence provided in the Criminal Code for robbery and it prescribes – 412 Attempted robbery (1) Any person who assaults any person with intent to steal anything, and, at or immediately before or immediately after the time of the assault, uses or threatens to use actual violence to any person or property in order to obtain the thing intended to be stolen, or to prevent or overcome resistance to its being stolen, is guilty of a crime, and is liable to imprisonment for 7 years. (2) If the offender is or pretends to be armed with any dangerous or offensive weapon or instrument, or is in company with 1 or more other person or persons, the offender is liable to imprisonment for 14 years. (3) If the offender is armed with any dangerous or offensive weapon, instrument or noxious substance, and at or immediately before or immediately after the time of the assault the offender wounds, or uses other personal violence to, any person by the weapon, instrument or noxious substance, the offender is liable to imprisonment for life. (4) The Penalties and Sentences Act 1992, section 161Q also states a circumstance of aggravation for an offence against this section. (5) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer. [74] Putting aside subsections (4) and (5) which obviously are not applicable to this matter, it is noticeable the maximum penalty prescribed by the Criminal Code for the offence of attempted robbery is life, but that is only applies when circumstances of aggravation accompany the offence whereby the perpetrator wounds the victim, or uses other personal violence, or uses a weapon, instrument or noxious substance in the commission of the offence. 55 Criminal Code Act 1899 (Qld), s 411(1). -- 15 of 19 -- 16 [75] The entry in BMR’s police information does not provide a reference to any circumstances of aggravation,56 that is, she was not armed with any dangerous or offensive weapon or instrument, nor was she in company with anyone else and nor did she wound the complainant. Therefore, the maximum penalty applicable to the facts of her offending was seven years imprisonment.57 [76] What is important in determining whether BMR’s conviction for attempted robbery is a serious offence as provided by the Working with Children Act is an comparison between the maximum penalty for the offence she was convicted of, and the definition as contained within Schedule 2 of the Working with Children Act. [77] A serious offence as provided within the Working with Children Act is an offence against the provisions of an Act mentioned in Schedule 2 or 3, column 1, subject to any qualification relating to the provision mentioned opposite in column 3.58 The only reference contained within Schedule 2 of the Working with Children Act relating to robbery is – 409 Definition of robbery only if an offender was or could have been liable as mentioned in section 411(2) [78] By referencing to the definition of robbery as provided in section 409 to the penalty as provided in section 411(1) of the Criminal Code, the very first thing observed is the commission of the offence without any circumstances of aggravation. That is, any person who commits the crime of robbery is liable to imprisonment for 14 years.59 [79] Section 411(2) then moves on to outline the penalty that if an offender is or pretends to be armed with any dangerous or offensive weapon or instrument, or is in company with 1 or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, the offender wounds or uses any other personal violence to any person, the offender is liable to imprisonment for life. [80] The third and final part of the section discusses the provisions of section 161Q of the Penalties and Sentences Act 1992 (Qld) relating to the offence carrying a circumstance of aggravation for the crime of robbery if the offender was a participant in a criminal organisation. This provision is not relevant to BMR’s case. [81] Specifically, Schedule 2 of the Working with Children Act provides no reference to the offence of attempted robbery. Any offence of robbery only becomes a serious offence if a person was or could have been liable to punishment provided within the section 411(2) of the Criminal Code, which provides for the punishment of life. [82] Having regard to that analysis of the facts relating to offence of attempted robbery committed by BMR and its application to Schedule 2 of the Working with Children Act, because the prescribed punishment for her offending was not life, I am of the 56 Criminal Code Act 1899 (Qld), s 1 – circumstance of aggravation means any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance. 57 Criminal Code Act 1899 (Qld), s 412. 58 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167(1). 59 Criminal Code Act 1899 (Qld), s 411(1). -- 16 of 19 -- 17 view that the legislation does not suggest the offence as a serious offence. [83] I acknowledge that a point made by the respondent in making the decision to issue a negative notice to BMR was a finding that the attempted robbery offence was a serious offence. Although that may have been identified as an error, that should not be a determinative factor in the ultimate decision reached by the Tribunal. The process undertaken in deciding BRM’s case is an administrative or merit review, and unlike a judicial review, the Tribunal’s function in administrative or merit reviews is to review the decision, not the process by which it was arrived at or the reasons for making it. The fundamental point is that although there is no presumption that the respondent’s original decision was correct,60 the decision ultimately reached by the Tribunal in this matter must be the correct and preferable one based on the information before the Tribunal. Discussion [84] Having already reached a determination that none of the offences recorded on BMR’s police information are serious or disqualifying offences, for the correct and preferable decision to be reached in this matter, I have to be satisfied that protective factors exist which satisfactorily mitigates any concerns of a risk to children. [85] An important issue to determine so far as BMR’s eligibility to hold a blue card and positive notice relates to whether she has the present or apparent attribute of insight. For BMR to be appropriately assessed, she must at least demonstrate that she is aware, or at the very least have insight into her own shortcomings and the subsequent consequences than can flow from that. She must also demonstrate her insight into identifying how those consequences can impact upon others. [86] The former Children Services Tribunal helpfully explained in Re TAA the appropriate position the Tribunal should reach when considering ‘insight’. In that case, the Tribunal said – 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.61 [87] Because insight is a protective factor, when reviewing matters involving child related employment, evidence has to be demonstrated to satisfy the Tribunal that an applicant has undertaken appropriate mitigation strategies to alleviate any concerns of a risk to children, and whether there was little or no likelihood of a risk to children. It is only appropriate that the Tribunal is entitled to know what, if any, is the risk of the repetition of the concerning behaviour which led the respondent being concerned about issuing BMR with a positive notice and blue card. It is equally important for the assessment as to whether there was little or no likelihood of a risk to children. 60 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9]. 61 [2006] QCST 11, [97]. -- 17 of 19 -- 18 [88] BMR’s position is that with the assistance of counselling, all previous concerns have been addressed. However, I note that it is not sufficient for anyone to simply rely upon a suggestion that just because they have attended counselling or mentoring, the concerning issued have been addressed. There has to be a clear demonstration by the application of some tangible evidence, that counselling has critically reduced any risk and enabled BMR to identify the triggers relating to that concerning behaviour. There also has to be demonstration contained within the evidence that BMR has the appropriate skills to manage and defeat any urge to act in an aggressive or inappropriate manner. Decision [89] The emphasis of a review into blue card matters is to apply the principle that there is a need for protection of children from future harm within places of employment. The emphasis should not be applied to the placing of additional punishment upon BMR just because she has acquired an adverse police record. To do that would otherwise punish her twice.62 [90] BMR told the Tribunal that she has now managed to overcome the impacts of a difficult childhood. She now has a loving and supportive family life. She urged the Tribunal to accept that she has taken the appropriate steps to change her life through mentoring, counselling, reflecting upon the mistakes she had made and taking responsibility for those mistakes. She relies upon the professional opinions of two psychologists to support that proposition. I accept that she is now able to identify her grossly inappropriate past behaviour and how that behaviour has extended over much of her young life. [91] It is important to revisit the long standing and established principle that there is no general rule about what an exceptional case is, and each case should be considered on its own merits and facts.63 [92] Earlier in these reasons I reached a determination that there is no history of any serious or disqualifying offences contained with BMR’s police information. In arriving at a conclusion, it is my view that appropriate steps have been taken by BMR to address any concerns that exist about her past, in particular the entries on her police information. [93] When the circumstances of this matter are examined in conjunction with the legislation, the legislative intention and the interests of the parties involved I am satisfied that the correct and preferable decision is to set aside the respondent’s decision and substitute that decision with my own decision that BMR’s case is not an exceptional one. Non-publication decision [94] BMR has entries on her police information for matters which relate to events that occurred when she was a juvenile. The Department of Child Safety, Youth and 62 Commissioner for Children and Young People Bill 2000 (Qld), second reading speech, Queensland Parliament Hansard, 14 November 2000 at page 4391. 63 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34]. -- 18 of 19 -- 19 Women have also produced documents to the Tribunal that contains confidential information relating to BMR and her family. [95] I consider the making of a de-identifying order is necessary to avoid the publication of confidential information or information whose publication would be contrary to the public interest.64 In regard to this matter, I choose to exercise the discretion pursuant to the QCAT Act and order the de-identification of BMR, along with the contents of any document or other 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 the identity of BMR, or any member of her family or any non-party to the proceedings. 64 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2). -- 19 of 19 --