AO v Director-General, Department of Justice and Attorney-General [2017] QCAT 454

CITATION: AO v Director-General, Department of Justice and Attorney-General [2017] QCAT 454 PARTIES: AO (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML145-17 MATTER TYPE: Childrens matters HEARING DATE: 17 November 2017 HEARD AT: Brisbane DECISION OF: Member Paratz DELIVERED ON: 14 December 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Director-General, Department of Justice and Attorney- General made on 19 May 2017 that: a) There is an exceptional case for AO under s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) in which it would not be in the best interests of children for AO to hold a positive notice; and b) Refusing to cancel the negative notice, is set aside. 2. A new decision is substituted that: a) There is not an exceptional case for AO under s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) in which it would not be in the best interests of children for AO to hold a positive notice; and b) The application of AO, made on 12 December 2016, to cancel the -- 1 of 9 -- 2 negative notice issued to him, is allowed. 3. Publication of the name of the applicant, other than to the parties to this proceeding, is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – where applicant issued with negative notice – whether exceptional case in which it would not be in the best interests of children for the applicant to hold a positive notice – where applicant was charged with offences and placed on probation – where applicant is Aboriginal – where similar circumstances were unlikely to ever arise again – where applicant had a difficult upbringing and was making a positive contribution to his community as a community worker – where applicant showed insight into, and remorse for, his offending – whether any risk to children was indicated Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, 221(2), 226(2)(a)(iv) Commissioner of Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 APPEARANCES: APPLICANT: AO in person RESPONDENT: Mr I. Corrie (Legal Officer) -- 2 of 9 -- 3 REASONS FOR DECISION [1] AO was issued with a Blue Card on 19 October 2009. As a result of criminal charges being brought against him on 6 October 2015, the positive notice was cancelled, and a negative notice was issued on 5 November 2015. [2] The charges were determined on 12 September 2016. AO applied to the Director-General on 12 December 2016 to cancel the negative notice. The Director-General refused the application to cancel the negative notice on 19 May 2017. [3] AO filed an application in the Tribunal on 23 June 2017 seeking a review of the decision to refuse to cancel the negative notice. [4] The Blue Card scheme operates under the Working with Children (Risk management and Screening Act) 2000 (‘the Act’). The object of the Act is as follows:1 5 Object of Act The object of this Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland 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. [5] The Chief Executive must issue a positive notice to a person applying under the Act, unless the Chief Executive is satisfied that 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, when a negative notice must be issued.2 [6] Where a person has been convicted of or charged with an offence, the Chief Executive must have regard to considerations under section 226(2) of the Act in determining whether an exceptional case exists. The considerations include the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children;3 and includes the following: (e) anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person. 1 The Act, s 5. 2 Ibid, s 221(2). 3 Ibid, s 226(2)(a)(iv). -- 3 of 9 -- 4 [7] AO was charged with offences dated 6 October 2015 of two counts of common assault; two counts of wilful damage; and one count of breach of bail condition. No conviction was recorded on all the charges in the Brisbane Magistrates Court on 12 September 2016, and AO was put on 12 months probation. [8] He had been charged with other offences also dated 6 October 2015, of entering a dwelling with intent to break whilst armed; wilful damage; common assault; and attempted murder; but no evidence was offered on those charges on 28 June 2016. [9] He had also been charged with offences of common assault and wilful damage, also dated 6 October 2015, which had been struck out on 4 November 2015. [10] The various charges related to a sequence of related events that occurred on 6 October 2015. [11] Prior to those charges he had been charged with contravening a direction or requirement; and obstructing a police officer; dated 1 October 2009. No conviction was recorded in the Caboolture Magistrates Court on 26 October 2009 in respect of those charges, and a fine of $350 with a fine option order of 20 hours of community service was imposed. [12] AO had prior offending in 2000 as a minor for property offences for which no conviction was recorded. [13] AO gave evidence as to the chain of events leading to the charges. [14] AO identifies as a gay Aboriginal man. He is a community worker, and is currently studying to obtain a Diploma in a related field. At the time of the offences he had been employed in a full-time position with a non-profit organisation on a salary of $85,000 per year. That position required that he hold a Blue Card, as whilst he does not work directly with children, he does work with families where children may be involved. [15] He resigned from his position by telephone from the watch house at the time of the offences, as he knew that he would lose his Blue Card as a result of the charges. [16] Prior to the offences, AO had gone overseas in company with a friend, to support his friend. The friend said that he was transitioning from a male to a female, and wanted to go to a certain South American country for gender reassignment surgery. AO spent about $40,000.00 on the trip and the extended stay. [17] AO became aware that his friend did not proceed with the intended surgery, but had rhinoplasty and liposuction instead. AO said that he was angry when he discovered that he had been misled. -- 4 of 9 -- 5 [18] The events occurred on an evening shortly after his return from overseas. AO went to a house where he had lived and where his friend and some other people were. All parties were adults, and had been consuming alcohol. An altercation ensued. The actual course of events is confused. AO says that he was assaulted by the occupants, and he went into a rage and kicked some glass window panels on the rear door of the dwelling. [19] Police were called to the house, and took him to the watch house. He said that, in the early morning, the police told him to go by taxi to a suburban Police Station, and not to go back to the house as a condition of bail. [20] AO said that his wallet and keys were still back at the house, and he told the taxi driver to take him to the house. When he got back to the house, another disturbance occurred. This led to the police again attending, and further charges being laid. [21] The sentencing Magistrate described the incident, and AO’s involvement:4 He’s an (indistinct) man, now aged 30 years of age and was 29 at the time of offending. I accept he is remorseful. He personally described growing up in a drug affected household with domestic violence rife, and he was trying to keep violence out of his life. The assault comprises the threat to slit the male complainant’s throat made at about 2am whilst not armed, but where there were kitchen knives in about kitchen – in the kitchen about 5 metres away. The complainant was apparently terrified. The later incident involving the woman (named) involved the defendant forcibly pushing her out of the way and saying that he was going to kill her son. There was no threat to kill her, but, no doubt, the presence of the knife was a major factor in her sensibly withdrawing from the scene and calling police. There was nothing in the facts which indicate he was in physical proximity to (named) when the knife was actually being held. The defendant stated that when he returned to the house after initially being arrested, he was trying to apologise, and when the door was locked to (Ms named) bedroom, quote: It triggered a rage in me- and referred to working hard free – to break all those cycles. [22] The sentencing Magistrate made the following remarks in imposing probation, which recognised the prospect of his obtaining a Blue Card:5 In this case, I take into account the timely plea of guilty which was indicated immediately following the discontinuance of the more serious charges. I take into account the Defendant has no Criminal Code offences of violence, that he has had a good employment history, working in an environment which assists others to reintegrate into the community and working with groups that are often marginalised. 4 Magistrates Court Brisbane, 12 September 2016, p 3. 5 Ibid, p 4. -- 5 of 9 -- 6 The nature of the behaviour on the two separates occasions over about a five-hour period was out of character and was an outburst tied up with his poor treatment and not being respected after giving major financial support to (named person). Of major importance to me – in my view, is the 141 days of declarable pre- sentence custody. He’s been challenged with significant financial stressors as a result of the money he spent on the trip to (named country) for himself and the complainant. I acknowledge the need to apply the sentencing principles to him generally, including general deterrence and personal deterrence. In view of the time already served and that – and to construct a sentence which gives the defendant the best opportunity to engage employment in a field in which he’s previously worked and for which he requires a blue card, can be addressed by an imposition of a period of probation. To give the defendant the best chance of moving on with his life and which is likely to be a factor in his again applying in obtaining a blue card, I exercise my discretion and do not record a conviction. [23] AO has completed the period of probation. He said that part of the probation was to access a psychologist or counsellor, and that he had a health check in prison, and the doctor said that he did not need counselling. [24] AO said that he did not have anger management issues, and that the offences occurred at a time when he had been working a 24-hour shift and was tired. He described the decision to go back to the house in the taxi as ‘probably the biggest mistake I have made in my life’. [25] A report of a Doctor attached to the Aboriginal and Torres Strait Islander Health Service dated 4 September 2017 noted that AO had a health check that day and noted: On the basis of today’s assessment and K-10 questionnaire (score was 10 – which was normal) (AO) doesn’t have any mental health issues at present and doesn’t need to see psychologist. [26] Whilst in prison, AO had started a prayer group to assist other prisoners. He said that he was respected in his community. He said he had been in contact with his former employer, and that if he had a Blue Card they would give him his job back, as he is a really dedicated person. [27] AO is in a poor financial position. He has obvious difficulties in managing money. He owes creditors $90,000, a significant part of which relates to a car which he purchased for his sister. He said he had debts of $70,000 when he went to the foreign country, and had spent $20,000 in cash and $20,000 on credit on the trip. Submissions [28] The Director-General made submissions and referred to the approach of the Court of Appeal in Commissioner of Children and Young People and -- 6 of 9 -- 7 Child Guardian v Maher & Anor6 of considering relevant risk and protective factors. [29] The Director-General noted the following protective factors: a) With the exception of some minor street offending in 2009, and some prior offending when he was a minor, MC had no other previous offences. b) The sentencing Magistrate noted his limited offending history and that he was remorseful. c) SM had some insight into his offending. [30] The Director-General noted risk factors as to the circumstances of the offence which occurred in AO’s former home, and that he had breached bail conditions about five hours after the first offences by returning to his former residence, which raised questions as to his judgment and anger management. [31] AO submitted that he continues to move forward in his community, and asked for consideration to be taken of the impact of his being unable to resume his employment. Discussion [32] AO was initially charged with a number of serious offences. Not all of the charges were proceeded with. The charges which proceeded were significant, but the sentence did not require any further period of detention. He successfully completed the probation period. [33] The sentencing Magistrate accepted that he was remorseful, and structured the sentence in such a way as to take into account the possibility of his applying again for a Blue Card. [34] AO has demonstrated that he has previously been able to ‘break the cycle’ of unemployment, domestic violence, drug usage and criminal offending, that afflicts sections of his community. He held a well-paid full-time position. [35] His current circumstances are somewhat fraught, as he has no regular income, no fixed accommodation, and significant debt. He is continuing with his studies, and is hopeful of resuming employment. [36] AO was a diligent worker. At the time of making the trip to South America, he had 10 years accrued annual leave, and was asked to take a holiday by his employer. When he was charged, his first and only telephone call was to his employer to resign his position. He has demonstrated responsibility in his work, and a high work ethic. 6 [2004] QCA 492. -- 7 of 9 -- 8 [37] The central question in consideration as to issuing of a blue card is whether there is a risk to children. The offences occurred in interaction between adults. [38] AO said that he worked with a person who was a paedophile, and who was under a forensic order, and this was a distressing experience for him. He demonstrated no tolerance or sympathy for anyone who would exploit or harm children. [39] In all the circumstances, is there an exceptional case in which it would not be in the best interests of children for the applicant to hold a positive notice? [40] The offences did not involve children. AO has demonstrated insight and remorse. The sentencing Magistrate anticipated the possibility of AO applying for a Blue Card again, and structured the sentence with that possibility in mind. [41] AO has come from a difficult background, and has shown that he can perform positive work within his community. He wants to make further positive contributions to his community. [42] The offences constitute one related series of events. AO says that such events would not occur again, that if anything like it occurred again that his response would be different, and that he appreciates the mistakes which he made. [43] AO still has some hurdles to clear to put his life back in order – he has to regain employment, implement strategies to manage his debt, establish stable accommodation, and complete his studies. [44] In order to regain his former employment, AO requires a Blue Card as, whilst he does not work directly or specifically with young people, his work does bring him into contact with families where young people are involved. [45] AO did display a lack of control, rage and very poor decision making in the commission of the offences. He submits that he was tired, that he was angry at being deceived by his friend, and acknowledges that his response was wrong and the biggest mistake of his life, and says that he has learnt from those mistakes. [46] Having regard to the difficulties of AO’s upbringing, which he has overcome, the value of work to him and his community, and there being no indication of risk to children, I am satisfied that an exceptional case is not shown. [47] I set aside the decision of the Director-General, Department of Justice and Attorney-General that there is an exceptional case for AO in which it would not be in the best interests of children for AO to hold a positive notice, and refusing the application to cancel the negative notice for AO. -- 8 of 9 -- 9 [48] I substitute a decision that no exceptional case exists in which it would not be in the best interests of children for AO to hold a positive notice, and allow the application to cancel the negative notice for AO. Non-Publication [49] It is not in AO’s interest that he be readily identified. Identification could cause him embarrassment and distress, having regard to the circumstances surrounding the offences. [50] I proposed to the parties that a confidentiality order be made, and the parties be de-identified, which they both indicated was appropriate. [51] I make an order prohibiting publication of any material identifying AO. -- 9 of 9 --