AA v Director-General, Department of Justice and Attorney-General [2018] QCAT 341

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AA v Director-General, Department of Justice and Attorney- General [2018] QCAT 341 PARTIES: AA (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE and ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML 200-17 MATTER TYPE: Childrens matters DELIVERED ON: 17 August 2018 HEARING DATE: 17 April 2018 HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: 1. The decision of the Director-General, Department of Justice and Attorney-General made on 21 July 2017 that the Applicant’s case is an exceptional case within the meaning of Working with Children (Risk Management & Screening) Act 2000 (Qld) is set aside; 2. The Tribunal directs that a positive notice be issued; and 3. The non-publication order made by the Tribunal on 16 February 2018 is continued. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card refusal – charge of rape – serious offence but not a disqualifying offence - pharmacy student in Australia – on scholarship – Temporary Student Visa – offence committed at time when all parties were heavily intoxicated – strength of case – whether exceptional case displaces presumption for positive notice ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINSTRATIVE TRIBUNAL – review of decision to issue a negative notice -- 1 of 11 -- 2 ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINSTRATIVE TRIBUNAL – non-publication – identity of applicant – identity of complainant and other witnesses in criminal proceedings – discretion to continue existing non-publication order until further order Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66 Working with Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 221, s 353, s 354, Schedule 4 BGL v Director-General, Department of Justice and Attorney-General [2017] QCAT 196 Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171; Chief Executive Officer, Public Safety Business Agency v Hamilton [2016] QCATA 106 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 In the marriage of Sandrik (1991) 104 FLR 394 APPEARANCES & REPRESENTATION: Applicant: S Hamlyn-Harris of counsel, instructed by Robinson O’Gorman Solicitors Respondent: I McGowie, Government Legal Officer REASONS FOR DECISION [1] The Applicant is a 27 year old international student residing in Australia on a temporary student visa. He is studying pharmacy at the Queensland University of Technology. He is here on a scholarship provided by his country. [2] A necessary requirement of his course is that he participate in a practical way by working in a pharmacy from time to time. Such a placement requires the applicant to have a blue card as he might be required to work with children. The blue card is issued under the Working with Children (Risk Management & Screening) Act 2000 (Qld) (‘WWC Act’). Blue Card Services issued a blue card to the applicant on 29 March 2016. [3] On 14 June 2017 the applicant was charged with rape, and, on 21 July 2017, Blue Card Services cancelled his blue card. -- 2 of 11 -- 3 [4] On the face of it, not a surprising response bearing in mind the object of the WWC Act. However, all is not as it seems; the WWC Act is a complex piece of legislation which requires some careful study to navigate safely. [5] The object of the WWC Act, is contained in section 5, and is to promote and protect the rights and interests and well-being of children and young people through a scheme requiring: (a) the development and implementation of risk management strategies; and (b) the screening of persons employed in particular employment or carrying on particular businesses. [6] Before proceeding further it would be beneficial to set out the principles upon which I should proceed in reviewing this decision. [7] Section 354 of the WWC Act provides that: (1) A person who is not a disqualified person may apply, within the prescribed period and as otherwise provided under the QCAT Act, to QCAT for a review of a chapter 8 reviewable decision. [8] Section 353 defines a ‘a chapter 8 reviewable decision’ as: (a) a decision of the chief executive as to whether or not there is an exceptional case for the person if, because of the decision, the chief executive … (i) issued a negative notice … to the person. [9] Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the purpose of the review of a reviewable decision is to produce the correct and preferable decision. The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. [10] Section 6 of the WWC Act provides: This Act is to be administered under the following principles— (a) the welfare and the best interests of a child are paramount; (b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child's well-being. [11] Screening of applicants is administered by the Chief Executive (Child Safety) or his or her delegate. On 15 June 2017, the Chief Executive was notified by the Queensland Police Services of a change in the Applicant's police information. [12] Put at its simplest, under section 221, set out below, a positive notice must be issued unless the chief executive is satisfied it is an exceptional case, in which case it would not be in the interests of children for a blue card to be issued. On the other hand, under section 225 a blue card will not be issued unless the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for a blue -- 3 of 11 -- 4 card to be issued. The presumption is reversed depending upon which section the applicant for a blue card falls under. The applicant here comes within s 221. [13] Section 221 of the WWC Act relevantly provides: (1) Subject to subsection (2), the chief executive must issue a positive notice to the person if— (a) the chief executive is not aware of any police information or disciplinary information about the person; or (b) the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person— (i) investigative information; (ii) disciplinary information; (iii) a charge for an offence other than a disqualifying offence; (iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or Note for subparagraph (iv)— For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices). (c) the chief executive is aware of a conviction of the person for an offence other than a serious offence. (2) If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. [14] The offence of rape is categorised as a serious offence under the WWC Act. Disqualifying offences are set out in Schedule 4 of the WWC Act. ‘Rape’, other than rape of a child, is not a disqualifying offence. [15] The chief executive was not aware of a conviction of the applicant for any offence but was aware that there was a charge for an offence other than a disqualifying offence, namely rape. Prima facie, section 221 required the chief executive to issue a positive notice to the applicant under subsection (1)(b)(iii), however, the chief executive was satisfied that an exceptional case existed in which it would not be in the best interests of children to issue a positive notice, and, therefore, a negative notice issued. [16] What is an exceptional case is not defined in the WWC Act. In Commissioner for Children and Young People and Child Guardian v Maher & Anor,1 Philippides J (as she then was) at [34] said: 1 [2004] QCA 492. -- 4 of 11 -- 5 I would endorse the approach of Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1, in adopting the warning of Luxmore J in Perry and Brown's Patterns (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 as of discretion." [17] In the same case McPherson JA at [4] said ‘An exceptional case in this context is one that does not conform to the general rule…’ [18] Member Ryan considered the meaning of ‘exceptional case’ in BGL v Director- General, Department of Justice and Attorney-General;2 the following passage is instructive. [8] The WWC Act does not define what constitutes an exceptional case; it is a matter of discretion. Courts and Tribunals have been reluctant to make any rule as to what is ‘exceptional’ but have considered it in the context of this and other legislation. In Baker v The Queen Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward) to the application of 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said: “We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” [9] The expression “exceptional case” must be read in context, which in this instance is within legislation to protect children’s best interests by preventing certain people from working with them. It is an issue of fact and degree and the Tribunal has broad discretion in considering the merits of each case. To be exceptional, a case must ‘take it out and beyond the ordinary circumstances reasonably expected to occur’ (citations omitted). [19] The Tribunal has been provided with a document described as a Court Brief. It is necessary for me to refer to some of the statements and allegations contained in the document. In doing so, I have omitted names. The applicant is referred to as the defendant. The victim is described as a 20 year old French national and the witness is also a 20 year old French woman. The victim and witness had been boarding at the defendant's residence for about six weeks and one week respectively. [20] At approximately 1 am on 3 December 2016, the victim had returned home from working at a nearby restaurant. The defendant was in the living room drinking with some of his male friends. The women joined them and had a glass wine together at the table. The defendant's friends left approximately 30 minutes later. The defendant, victim and witness sat on the couch talking and drinking together. As the night progressed they all continued to drink alcohol and started playing drinking games with playing cards. The victim and witness stated they shared a hash ‘cookie’ with the defendant at some point during the night and the three of them continued to drink and dance in the living room. 2 [2017] QCAT 196. -- 5 of 11 -- 6 [21] The following passages are taken directly from the Court Brief: The victim and witness were drinking wine from a 4 litre cask. Over the course of the night (6-7 hours) they consumed a whole cask and approximately half of a second cask. In total they drank approximately 6 litres of wine. As a result both girls were heavily intoxicated. The defendant was drinking beer and spirits. The victim states at about 8:30 am witness leaves the living room to go and have a shower before bed. The victim states she followed the defendant into his room but does not recall why she went in there with him. The victim remembers the defendant being on top of her fully naked. The victim remembers feeling defendant’s penis inside her vagina and he was moving it backwards and forwards in a thrusting motion. The victim remembers her vagina and anus being sore. The victim remembers when she realised what was happening to her she said something like "that’s enough" to the defendant for him to get off her but the defendant didn’t stop and continued to have sex with her. The victim states she did not consent to the defendant having sexual intercourse with. The victim remembers crying and being scared. The victim states she remembers a knock on the door and hearing the defendant saying "shut up" to her. The victim states she had no concept of time and does not remember how long the defendant had sex with her. The victim states she remembers walking out of the bedroom with a pillow in front of her, visibly shaken and crying and she was not wearing any clothes. [22] It is submitted, on the applicant’s behalf, that the statement by the complainant that she did not consent to the defendant having sex with her is not correct. In her witness statement the complainant says that she cannot remember consenting. At paragraph 5 of her statement she says: After I walked into his bedroom all I remember from that point is (the defendant) being on top of me having sex with me. I can’t recall any conversation with him or how we even got to that point. I don’t remember consenting to anything. I remember he wasn’t wearing anything. [23] The following is apparent from the information contained in the court brief and statements. These three flat mates had been drinking and dancing together over many hours. They were all heavily intoxicated. There is no suggestion that the complainant did not go into the applicant's bedroom willingly. They both were undressed and the complainant has no recollection of how that occurred. Indeed, the complainant has no recollection of any conversation in the bedroom up to the point where she said something to the effect ‘that is enough’. It is submitted, on the applicant's behalf, that at its highest, the case against the applicant is that he failed to stop when the complainant withdrew her consent. [24] Soon after these events the complainant was taken by the witness to a police station where the witness alleged the complainant had been sexually assaulted. Police observed the complainant to be very intoxicated and distressed but during the conversation with police she said she did not wish to make any kind of sexual assault report and did not have any injuries. Because of her demeanor, and level of intoxication, the complainant was taken to hospital. There, it is alleged, she made comments that she did not want to have sex with the applicant and that she was forced to do it. At the hospital she again spoke to police with the assistance of an interpreter. Again she did not provide any details specific enough to nominate what offences, if -- 6 of 11 -- 7 any, had occurred. She was unwilling to undergo any form of forensic examination. A plainclothes police officer attempted to speak to her further but she was not willing to discuss the matter. The complainant’s mother travelled from France to support her daughter and a formal complaint was made on 13 December 2016. [25] It was not until 14 June 2017 that the applicant was charged. [26] I understand, at the present time, the matter has not even proceeded through the committal stage. The complainant and her witness have returned to France. It is unlikely that this matter will proceed to trial in the near future. Of course, an acquittal would not necessarily mean a reversal of the Director’s decision. [27] It would appear that the Director, Screening Services Unit, of Blue Card Services in making a decision to cancel the applicant’s positive notice and blue card and to issue a negative notice may have confused the statutory presumption contained in section 221 of the WWC Act that applied to the circumstances of the applicant. I say that because, in her reasons, she refers to the Act as placing a barrier to persons with a conviction for a serious offence from working with children, and the proper inference to draw must be that it would harm the best interests of children for persons with convictions of a serious offence to work with children unless it is an exceptional case. That situation was not the case here. What she was to determine was whether circumstances existed that amounted to an exceptional case that warranted the cancellation of his blue card. Otherwise, as he only had been charged with an offence other than a disqualifying offence, the applicant was entitled to retain it. To put it another way, there is a statutory presumption that a positive notice should issue. [28] As this is a review and is by way of fresh hearing on the merits, I am not bound by the decision under review. [29] Solicitors on behalf of the applicant made submissions to the Director in support of the applicant's positive notice and, that his case was not an exceptional case. The reasons contained in their letter of 28 June 2017 included: (a) he faced allegations and charge only, no final determination had been made; (b) the charge of rape was not a disqualifying offence unless it was against a child, which was not the case; (c) the alleged offence was not directly relevant to employment or to carrying on a business that involved or might involve children; (d) the allegation was disputed by the applicant: (e) the applicant has no criminal history in Australia or his home country or elsewhere, (f) the applicant is presently enrolled at the Queensland University of Technology and is scheduled to complete his course at the end of 2019: (g) he is here on a scholarship and a temporary student visa which expires in March 2020; -- 7 of 11 -- 8 (h) it is a mandatory requirement of his course that he hold a blue card and that is the only reason he held a blue card; (i) he is required to undertake one placement per semester which requires him to work with a qualified pharmacist in a pharmacy dispensing medication and counselling patients; (j) during the last two placements he has had minimal, if any, contact with children and young people. The only occasions upon which he has had any interaction with children is when they have accompanied their parent to purchase medication from the pharmacy; (k) during any placement he is supervised 100% of the time by qualified pharmacists employed by the pharmacy, and (l) if issued with a negative notice he will no longer be permitted to undertake placement component of his bachelor degree which will jeopardise completion of his degree therefore, his status in Australia. [30] I acknowledge, that once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business. I also note that hardship or prejudice suffered by an applicant, by an adverse determination, is irrelevant. 3 The Respondent’s case [31] The Director took into account that the allegations were disputed by the applicant. However she considered the risk factors raised by the alleged offending were significant. She relied upon what she considered were particularly concerning factors which she set out in her reasons as follows: (a) The complainant was clearly in a vulnerable position due to her intoxication and she stated she felt scared and did not consent to the sexual intercourse; (b) The witness present in the house at the time stated she heard the complainant say ‘stop’ and the applicant telling her to ‘shut up’ when the witness knocked on the door; (c) the witness observed the complainant walking out of the applicant’s room, naked and distressed; and (d) the witness was sufficiently concerned for the complainant’s well-being that she called emergency services. [32] The Respondent’s legal counsel relied upon the following risk factors, not all of which could be categorised as such: (a) the applicant has an outstanding charge for the offence of rape which is categorised as a serious offence under the WWC Act. This reflects the seriousness with which Parliament considers this type of offending in the 3 Chief Executive Officer, Public Safety Business Agency v Hamilton [2016] QCTA 106. See also Chief Executive Officer, Department of Child Protection v Scott (No 2) [2008] WASCA 171, [23]. -- 8 of 11 -- 9 context of an assessment of a person’s eligibility to engage in child related regulated employment; (b) the applicant's alleged sexual offending raises serious concerns regarding his ability to respect personal boundaries, judge appropriate behaviour and exercise self-control. Such skills are particular important when working in areas of regulated employment as they contribute to the creation of a safe and protective environment for children; (c) further, children have a right to be cared for by adults who exhibit protective and nurturing behaviours. Positive role models are particularly important for children as they are entirely dependent on adults around them to exercise proper judgement and restraint. The applicant alleged offending is adverse to an assessment of his ability to safeguard the best interests of children and young people who may be in his care; (d) the tribunal’s role is quite distinct from that of the courts. It is not to try the applicant’s case or determine the applicant’s guilt or innocence. The tribunal is not in a position, nor is it the tribunal role, to arrive at a definitive conclusion as to whether the alleged offence did in fact occur. The tribunal's role focuses on the best interests of the children and whether, should the applicant be granted unsupervised access to work or interact with children’s activity regulated under the Act, it would be contrary to the best interests of those children. Any hardship or prejudice suffered by the applicant of such a determination is irrelevant to this consideration; (e) A positive notice is unconditional and fully transferable. The holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities; and (f) Overall, the primary issue in the applicant’s case is whether it is in the best interests of children and young people to allow uninhibited access to them by a person whose criminal history consists of an outstanding allegation of rape. [33] Protective factors raised by the Respondent were: (a) The Applicant’s criminal history did not demonstrate an ongoing or persistent pattern of offending behaviour. The outstanding charge for rape is the only entry on the Applicant’s criminal history; and (b) The Applicant’s submissions indicated he has a strong network of family and friends. [34] Although the legislature has categorised rape as a serious offence it did not categorise it as a disqualifying offence, except if it was rape of a child. Obviously, there is in the legislative mind, varying levels of seriousness in respect of a charge of rape. The particulars of the offence charged disclose a high level of intoxication by all parties. There was no allegation of violence or force used although, subsequently, the complainant alleged that she could not physically resist the applicant. She exhibited no physical injuries, when examined at hospital. Her own statement casts doubt on whether carnal relations, initially, were not consensual. The meaning of contemporaneous statements made by the complainant, as related by the witness, -- 9 of 11 -- 10 could be considered ambiguous, not forgetting that, she also was heavily intoxicated, as well. The fact that the applicant was also heavily intoxicated is also significant. [35] These are not adversarial proceedings. There is no onus on a party to make out an exceptional case.4 The Tribunal’s role is to stand in the shoes of the Director to determine whether, in this case, a presumption in favour of the applicant that this is not an exceptional case, has been displaced. The standard of proof is the Briginshaw v Briginshaw & Anor standard.5 I have to be satisfied on the balance of probabilities, taking account the gravity of the consequence involved, that this is an exceptional case, in which case it would not be in the interests of children for a blue card to be issued. Conclusion [36] In my opinion, the evidence does not reach the level of exceptional circumstances required by s 221 of the WWC Act. The alleged offence, with which he is charged, was committed, at a time, when he was heavily intoxicated, he was not at work and was in a social setting. It is not reasonable to compare the applicant’s behaviour, in those circumstances to circumstances outlined in the respondent’s submissions where he may be required to work with children or young people. [37] Looked at objectively, I do not see the applicant’s behaviour, on the night in question, as posing a potential risk to children he may come in contact with. The risk factors alleged by the Director, which I have set out above, do not outweigh the protective factors set out in the applicant’s submissions also set out above. I do not believe the case to be exceptional, such as, to displace the presumption in the applicant’s favour. [38] Although, as I have noted there is no restriction on the transferability of the blue card, I consider it relevant that he is restricted by the terms of his scholarship from working in any paid or unpaid employment whilst resident in Australia. There is no suggestion that he will not abide the terms of his scholarship nor that the terms of the scholarship will not be enforced by the donor country. The Tribunal can only rely upon the evidence before it.6 [39] The Tribunal order is that the decision of the Director-General, Department of Justice and Attorney-General made on 21 July 2017 that the Applicant’s case is an exceptional case within the meaning of Working with Children (Risk Management & Screening) Act 2000 (Qld) is set aside and the Tribunal directs that a positive notice be issued. Non-publication order [40] The QCAT Act provides the Tribunal with the discretionary power to make a non- publication order prohibiting the publication of the contents of any document or thing produced, or evidence given, or information that might enable a person who appeared before the Tribunal to be identified.7 4 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28. 5 (1938) 60 CLR 336. 6 TTI v Director General, Department of Justice and Attorney General [2017] QCAT 57, [50]–[51]. 7 QCAT Act, s 66. -- 10 of 11 -- 11 [41] On 16 February 2018, the Tribunal made an order, until further order, prohibiting publication of any information which may identify the name of any complainant or any other witness in the criminal proceedings. [42] It is appropriate that the terms of that order be continued. -- 11 of 11 --