DA v Director-General, Department of Justice and Attorney-General [2017] QCAT 392

CITATION: DA v Director-General, Department of Justice and Attorney-General [2017] QCAT 392 PARTIES: DA (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML064-17 MATTER TYPE: Childrens Matters HEARING DATE: 9 October 2017 HEARD AT: Brisbane DECISION OF: Member Traves DELIVERED ON: 8 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Director-General, Department of Justice and Attorney- General made on 22 February 2017 that this is an “exceptional case” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case. 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 – offences of possessing dangerous drugs, arson, break and enter and wilful damage to property – where not categorised as serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – -- 1 of 12 -- 2 whether an “exceptional case” warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 162, s 167, s 169, s 221, s 222, s 223, s 225, s 226, s 260, s 353, s 354, s 358, s 360 AD v Director-General, Blue Card Services, Justices Services and Attorney-General [2017] QCAT 99 AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 Baker v The Queen (2004) 223 CLR 513 Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 491 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 D and Department for Community Development [2007] WASAT 154 APPEARANCES: APPLICANT: DA RESPONDENT: Mr Ian McCowie represented the Director- General, Department of Justice and Attorney- General REASONS FOR DECISION Introduction [1] This is an application for review of a decision by the Chief Executive, Blue Card Services to issue a negative notice upon receipt by the Department of a change in police information relating to the applicant, DA. [2] DA was born on 13 December 1993. He had originally been issued with a blue card on 7 March 2014. He needed a blue card for his job as a volunteer -- 2 of 12 -- 3 gymnastics coach. DA was found guilty of the offence of possession of a dangerous drug (cannabis) on 4 July 2016. No conviction was recorded. However, following notification of that offence by the police to the respondent, DA was issued with a negative notice on the basis his was an “exceptional case” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act). This meant that he was no longer the holder of a blue card and was forced to resign from his job as a gymnastics coach. [3] DA has committed other offences. In October 2012, when he was 18 years old, he had, in association with other young males, been convicted of arson, break and enter and wilful damage to property. The offences were all committed on one night while the group was all heavily influenced by alcohol. The arson occurred when the group set alight a dental health van on school premises which then spread, causing extensive damage to a neighbouring classroom. This behaviour, while reprehensible, is not classified as a “serious offence” under the Working with Children Act. Neither is the possession of cannabis. [4] In short, where a person has been charged with an offence other than a serious offence the chief executive must issue a positive notice unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.1 [5] In this case the chief executive was satisfied the case was exceptional within the meaning of the Working with Children Act. [6] The issue is whether on the basis of the circumstances and nature of the offence and in light of the other factors in s 226(2) this is an exceptional case in which it would not be in the best interests of children for DA to be issued with a positive notice and blue card. Cancelling a positive notice and substituting with a negative notice [7] DA had been issued with a positive notice and blue card on 4 November 2013. Upon changing his employment from volunteer to paid, he made a “volunteer to paid employment transfer application” and was issued with a paid positive notice and blue card on 7 March 2014. [8] On 22 February 2017, after notification of a change in police information, DA’s positive notice was cancelled and he was issued with a negative notice. [9] Under s 237 of the Working with Children Act the chief executive may cancel a person’s positive notice and substitute a negative notice if the chief executive is satisfied that it is appropriate to cancel the positive notice having regard to: 1 Working with Children Act, s 221(2). -- 3 of 12 -- 4 (i) disciplinary information, or information received under part 6, division 2 to 4, about the person, other than information known to the chief executive at the time the positive notice was issued; or (ii) a decision of a court made after the positive notice was issued, including the reasons for the decision, relating to an offence committed by the person. [10] In making that decision, the chief executive must make the decision as if it were a decision about a prescribed notice application and, for that purpose, division 9 (relevantly, s 221 and s 226) applies in relation to making the decision.2 [11] If the decision requires the chief executive to decide whether there is an exceptional case for the person and the chief executive is proposing to substitute a negative notice, s 229(2) to s 229(5) must be complied with.3 [12] Section 229(2) requires that a person be given written notice stating the police or disciplinary information the chief executive is aware of and inviting the person to make submissions about the existence of an exceptional case. The person must be given at least 7 days to make submissions.4 [13] On 1 September 2016 the Department sent a letter to DA which included a copy of the change to his police information and invited him to make submissions “about your police information and why I should not cancel your positive notice and issue a negative notice to you.”5 [14] On 22 February 2017 the Department advised DA of its decision to cancel his positive notice and to issue a negative notice in its place. The decision, in my view, must be appropriate having regard to the information of which the Department becomes aware after the positive notice was issued, in this case, as a result of the change in police information. This is clear from s 237. However, in making that decision, the factors in s 226 must also be considered.6 [15] DA has applied to the Tribunal for a review of that decision. A person who is not a disqualified person7 is entitled to apply for review of a “chapter 8 reviewable decision” within 28 days.8 This includes a decision as to whether or not there is an exceptional case if, because of the decision, a negative notice was issued.9 [16] The Tribunal is to decide the review in accordance with the Working with Children Act and the Queensland Civil and Administrative Act 2009 (Qld) 2 Working with Children Act, s 237(2). 3 Working with Children Act, s 237(3). 4 Working with Children Act, s 229(3). 5 See letter dated 22 February 2017 from the Department to DA. 6 Working with Children Act, s 237(2). 7 Working with Children Act, s 169. 8 Working with Children Act, s 354(1). 9 Working with Children Act, s 353(a)(i). -- 4 of 12 -- 5 (QCAT Act). The Tribunal has all the functions of the decision-maker for the decision being reviewed.10 [17] The purpose of the review is to produce the correct and preferable decision. In meeting that purpose the Tribunal must hear and decide the review by way of a fresh hearing on the merits.11 [18] DA is not a disqualified person and applied for review within the prescribed period. The “blue card” legislative framework [19] The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.12 It is protective legislation. [20] A child related employment decision13 is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.14 The overriding concern is the potential for future harm to children. [21] The Working with Children Act categorises “blue card” applications in two broad groups: (a) Where a blue card must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued;15 and (b) Where a blue card must 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 card to be issued.16 [22] This matter falls within the first category. It is one where a positive notice must be issued unless the test set out in s 221(2) applies. [23] Section 221 provides, relevantly: (1) Subject to subsection (2), the chief executive must issue a positive notice to the person if — … (c) the chief executive is aware of a conviction of the person for an offence other than a serious offence. 10 QCAT Act, s 19. 11 QCAT Act, s 20. 12 Working with Children Act, s 5. 13 Child related employment decision is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358. 14 Working with Children Act, s 360. See also s 6. 15 Working with Children Act, s 221. 16 Working with Children Act, s 225. -- 5 of 12 -- 6 (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. [Emphasis added] [24] In this case, the chief executive issued a negative notice on the basis that, although DA had been charged with an offence other than a serious offence, the chief executive was satisfied that his was an exceptional case within the meaning of s 221(2). What are the requirements for an exceptional case in which it would not be in the best interests of children for a positive notice to be issued [25] I have previously considered the legal principles and provisions relevant to this issue in AD v Director-General, Blue Card Services, Justices Services and Attorney-General:17 There is no legislative guarantee that a person charged with an offence other than a serious offence will be given a blue card. Although this is the default position, there is a power conferred on the chief executive to depart from the general rule where the chief executive is satisfied an “exceptional case” exists in which it would not be in the best interests of children for this to occur. This necessarily requires an evaluation of the risk or degree of risk that the applicant would harm the best interests of children in the course of carrying out child-related work. If the Tribunal is satisfied that the case is an exceptional one in which it would not be in the best interests of children for a positive notice to be issued, the Tribunal must give a negative notice to the applicant.18 What does “exceptional case” mean? Exceptional case is defined in Schedule 7 to mean “exceptional case as mentioned in section 221(2), 222(2), 223(4) or 225(2)”.19 Whether a case is exceptional is a matter of discretion and there is a reluctance to lay down any general rule as to what is an exceptional case.20 In applying the discretion the factors in s 226 (2) must be considered. What constitutes an exceptional case or, in the context of equivalent legislation in other States, exceptional circumstances, has been considered by the courts and Tribunals on numerous occasions. 17 [2017] QCAT 99, [21] – [33]. 18 Working with Children Act, s 221(2). 19 Working with Children Act, s 3. 20 Maher at [34] citing Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1. -- 6 of 12 -- 7 The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford) defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special.' In Baker v The Queen21 Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward)22 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. The expression “exceptional case” must be read in its statutory context. The purpose of the legislation is to protect children by preventing people from working with children where this would not be in their best interests. The intent of the specific provision is to make it the usual case that someone who is charged with an offence that is not a serious offence will be issued with a blue card.23 It is only where the case is exceptional in which it would not be in the best interests of children that a blue card is to be refused. The mandatory factors In deciding whether it is an exceptional case in circumstances where the applicant has been convicted of or charged with an offence, the Tribunal is obliged to consider the factors in s 226 (2). These factors are not exhaustive24 and will not necessarily be given equal weight in the evaluative exercise to be undertaken. What weight is accorded to each factor will depend upon the facts and circumstances of the particular case. The mandatory factors do not qualify the principle that the welfare and best interests of a child are paramount.25 This does not mean however that the factors are excluded by this overriding principle, merely that they are subordinated to it. “Paramount” is not equivalent to sole.26 21 [2004] HCA 45; (2004) 223 CLR 513 at 573 cited in D and Department for Community Development [2007] WASAT 154. 22 [1999] UKHL4; [2000] QB 198 at 208. 23 See further Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [46] where it was held: “The proper inference to draw from the Commission Act must be that it would harm the best interests of children for persons with convictions for that offence to work with children unless it is an exceptional case.” 24 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [42] although concerned with an earlier version of the Act; Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [23]. This is contrary to the position under the Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(8) which exhaustively lists the considerations to be applied: Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 at [16]. 25 Working with Children Act, s 360. 26 Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171. -- 7 of 12 -- 8 The factors which must be considered are: (a) In relation to the relevant offence: (i) Whether it is a conviction or a charge (ii) Whether the offence is a serious offence and if it is, whether it is a disqualifying offence; and (iii) When the offence was committed; and (iv) The nature of the offence and its relevance to employment, or carrying on a business that involves or may involve children; and (v) In the case of a conviction – the penalty imposed by the court, and if the court decided not to impose an imprisonment order or not to make a disqualification order under s 357, the court’s reasons for its decision. (b) Any information about the person given under s 318 (DPP) or s 319 (Corrective Services); (c) Any report about the person’s mental health given under s 335; (d) Any information given under s 337 (Mental Health Court) or 338 (Mental Health Review Tribunal) (e) Anything else relating to the commission of the offence that the chief executive reasonably considers to be relevant to the assessment of the person. These factors, unlike the position under differently worded, equivalent legislation in other States,27 are not exhaustive. Although the factors in the Queensland Act are not exhaustive and there appears no express constraints on the matters that may be taken into account when considering whether there exists an “exceptional case”, the Appeal Tribunal has held that any hardship or prejudice caused to the applicant are not relevant considerations.28 The applicant’s evidence and submissions [26] The information of which the Department became aware as a result of the notification of a change in police information related to DA’s conviction for possession of a dangerous drug (cannabis). The incident occurred in June 2016. On DA’s account, he had been visiting his friend and “had been in the wrong place, at the wrong time”. The police had executed a search warrant at the premises in relation to another matter and had discovered cannabis and utensils used for smoking it on the premises. 27 See for example, Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(8). 28 AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 relying on Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171. -- 8 of 12 -- 9 [27] DA claimed he had not consumed alcohol since his offending conduct in 2012 and that he no longer associates with the group he was with on the night of the arson, nor with the person he had been visiting in 2016 when the more recent offence occurred. Further, that he is now in a stable relationship with SP. [28] DA had been a valuable and popular employee at a Gymnastics Club where he worked as a gymnastics coach. He began as a volunteer but undertook the necessary training to obtain the qualifications required to be a gymnastics coach. He had worked there for 3 years before his blue card was cancelled. [29] The Tribunal heard evidence from Ms PW, the head coach at the Gymnastics Club and also from Ms EA, DA’s co-worker. [30] Ms PW gave evidence that DA was a reliable and valued member of staff. She said that he had never missed a day of work in 3 years and had never been late. She also said that in her opinion, he was a good role model for children. He was able to deal with any stressful situation that had arisen, including disagreements amongst staff. She had no concern at all with him working with children, supervised or unsupervised. She also said that PS had had a very positive impact on DA and that she had seen him grow in confidence as a person and at work over the years he had been there. [31] Ms EA gave evidence that DA was “adored” by the children and that she really enjoyed working with him. She said that he was particularly good at working with the children, that he understood them and that he was proof to them that the key in gymnastics was trying your best and having a go, not necessarily being the best. [32] She said that she had known him for 4 to 5 years and since working with him had seen him on average 7 hours a week during school terms for 3 years. When asked how DA responded to stressful situations, Ms EA relayed an incident when a child had broken her leg in training. She said that DA was quick to show initiative and had taken all the other children downstairs to the basketball courts where he was able to distract them to enable other staff members to treat the injured girl appropriately and without other children looking on. [33] Finally, DA’s mother, Ms RD gave evidence which provided insight into how, in her view, DA had changed. She said that he had matured and altered his attitude to life since his teenage years. She also gave insight into the difficult upbringing DA had experienced. Ms RD was very candid about her own personal life and explained how a nervous breakdown had forced her to leave her children and to move to Darwin. She said that DA had been raised by his 3 sisters and that this had been very difficult for him. He had also had learning difficulties at school and had been constantly unhappy and bullied at school. Upon reflection, she thought that DA had really suffered from having no-one to talk to at the time. This had, in her opinion all changed. She said that DA was now settled and very much supported by PS. -- 9 of 12 -- 10 [34] Ms RD said that, in addition to PS, DA was now supported by his, counsellors, his doctor, M, PW, and PW’s husband. He therefore had a vastly different and much stronger support network than he had had growing up. The respondent’s evidence and submissions [35] In assessing whether there is a risk of harm, the respondent applied the evaluative approach endorsed by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher29 which involves identifying and balancing “risk” factors with “protective” factors arising from the circumstances of the particular case. [36] In applying that approach, the respondent identified the following protective and risk factors:30 Protective Factors (1) The breaking of associations with friends who negatively influenced him in the past; (2) The positive and stable relationship he has had with [PS]31 for the past 5 years. (3) His employment as a gymnastics coach with the same Club for the 3 years prior to having his blue card cancelled. (4) His attendance at the Noffs Foundation, a counselling service for youth drug and alcohol problems. (5) Techniques he has learnt and now employs to help with anger and anxiety when he finds himself in a stressful or confronting situation. (6) Use of a job network service to successfully find employment; (7) The insight he had shown in the Hearing as to the impact of drug use and his remorse for past behaviour; (8) Referees who all supported his application and spoke positively of him and his ability to work with children. Risk factors (9) The relative recency of the offence, being July 2016. (10) The report of Dr Hatzipetrou in 2013 which was provided to the court relating to the 2013 offences which outlined particular intellectual deficits; 29 [2004] QCA 491. 30 See generally Respondent’s Outline of Submissions dated 6 February 2017, [28]-[29]. 31 Amended due to administrative error on 23 January 2017. -- 10 of 12 -- 11 (11) The conclusions in Dr Hatzipetrou’s report to the effect that DA’s mental health symptoms of anxiety and “adjustment problems” were not effectively managed”; (12) That DA had engaged in drug use in 2016 despite being previously punished for drug use in 2013. (13) The fact he had received a 3 year sentence for his offences in 2012. [37] The respondent submitted that overall, the risk factors outweighed the protective factors and that, given the paramountcy of the best interests of children, that this was an exceptional case. Is this an exceptional case? [38] The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case. [39] In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.32 [40] There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.33 [41] Looking at the factors which must be considered and at factors I consider relevant, I make the following observations: (a) DA’s offence in 2016 was not a serious offence. (b) It occurred as a result of a visit to his friend’s house when the police discovered cannabis on the premises. I accept DA’s evidence, that he no longer has anything to do with that person. (c) DA is in a stable, positive relationship with PS. He appears committed to making that relationship work and clearly has matured as a result of the relationship. (d) He has been a reliable and enthusiastic employee at the Gymnastics Club. The head coach and a co-worker, another coach, spoke very highly of his attitude to work and of his ability to work with and understand children. (e) The incident in 2016 did not occur in the course of child-related work and did not involve children; (f) DA has, since the 2013 report of Dr Hatzipetrou, been successfully treated for depression and anxiety by Dr Peter Bevan who prescribed 32 Maher at [30]. 33 Working with Children Act, s353(a); RPG v Public Safety Business Agency [2016] QCAT 351, [27]. -- 11 of 12 -- 12 medication which DA and PS observe to have made a marked difference to his outlook; (g) Dr Bevan reports that in his view, DA is “fit to work with children”;34 (h) DA now has a good relationship with his mother who was absent from his life while he was going through difficult teenage years; (i) DA also now has a strong support network, including his mother, PS, his doctor, counsellors, M, PW and her husband; (j) DA had a difficult upbringing and I infer that the offences in 2012 were largely as a result of that; (k) I also observed DA in the witness box and formed the view that he is proud of how far he has come, that he is genuinely grateful for the help and support he has received, principally from PS and her mother, and that he is unlikely, as a consequence, to risk that by further offending; (l) DA is supported by people who have known him for many years and who have worked with him closely, over a consistent time period and in a field that involved working with children. [42] In terms of whether DA is at risk of doing something similar again, I find that the risk is not such as to make it an exceptional case where to give DA a blue card would not be in the best interests of children. Conclusion [43] In applying the matters to which I must and may have regard, on balance, I am not satisfied that this is an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued. [44] Accordingly, I order that the decision of the Director-General, Department of Justice and Attorney-General made on 22 February 2017 that this is an “exceptional case” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case. 34 Medical Certificate by Dr Peter Bevan dated 1 June 2017. -- 12 of 12 --