CDS v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 567

CITATION: CDS v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 567 PARTIES: CDS (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML097-14 MATTER TYPE: Childrens matters HEARING DATE: 10 September 2014 HEARD AT: Withheld DECISION OF: Member Quinlivan DELIVERED ON: 7 November 2014 DELIVERED AT: Brisbane ORDERS MADE: Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant, the locality of the applicant and the identity of his children and step-children. CATCHWORDS: Non-publication, serious offence, public interest APPEARANCES and REPRESENTATION (if any): APPLICANT: CDS RESPONDENT: The Chief Executive Officer, Public Safety Business Agency REASONS FOR DECISION [1] Under Chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (the Act) a scheme has been established to screen persons who might be working with children, to ensure that they are suitable. One of the primary purposes of this scheme is to issue what are -- 1 of 4 -- 2 generally known as Blue cards, to protect children from harm and promote their well-being. [2] In order to obtain a Blue card a person must be issued with a positive notice, which declares that the person is approved1. The Chief Executive Officer, Public Safety Business Agency, makes initial decisions about these applications and any review of those decisions is undertaken by this Tribunal. [3] In this matter the applicant applied for a Blue card on 10 January 2014. On 23 April 2014 the then Commissioner for Children and Young People and Child Guardian issued a negative notice to the applicant. On 26 May 2014 the applicant applied to the Tribunal for a review of the decision. [4] The decision is reviewable under section 17 of the QCAT Act and the review has been conducted under section 20 of the QCAT Act. The Tribunal is required to hear and decide the matter by way of a fresh hearing on the merits and from that process to produce the correct and preferable decision2. [5] The Tribunal heard this matter on 10 September 2014. There is a preliminary matter that needs to be determined before dealing with the substantive issue. Leave was granted for the applicant to make an application for a non-publication order under section 66 of the QCAT Act. [6] The Commissioner at the time did not oppose the making of an order to the effect that the decision be de-identified including details of the various participants and the general location of the matter. [7] The oral application was made at the commencement of the proceedings. The context for the application was that the applicant’s entire prior offending save for one matter had occurred while he was still a child. At the time of the commission of the most serious offence the applicant was 16 years old. [8] The respondent submitted to the Tribunal that the provisions of section 66 of the QCAT Act applied in that the Tribunal had jurisdiction to make an order that is necessary in the public interest. Further the respondent acknowledged that if the Tribunal determines that that it is necessary to make a non-publication order then that order can extend it to the non- identification of parties or individuals or organizations or the locality of the matter. [9] In particular the respondent drew the Tribunal's attention to the decision in FGC [No 2]3. One of the issues in that case was that the publication of the applicant's name would be contrary to the public interest, because if a 1 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 220(a). 2 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [4]. 3 FGC V Commissioner for Children and Young People and Child Guardian (No 2) [2010] QCAT 362. -- 2 of 4 -- 3 person who had not been charged or convicted of any offence and was successful in having their blue card restored then it would not be in the interests of justice to have the details published. This was because the publication of that person's name would have a deleterious effect on others considering whether or not to lodge an application for review. [10] This present application can be distinguished from the decision in FGC [No 2] in that the applicant in this case was found guilty of a very serious offence and was incarcerated for a considerable period of time. The applicant made it clear both in his oral submissions and his correspondence to the Tribunal that if a non-publication order were not made he would withdraw his application to protect his children and those that were supporting him who may be harmed or punished in any way because they did so. [11] The applicant submitted that his son and 3 step children should be protected under the order being proposed. Likewise he lives in a small community where he is involved in various community activities, and publication could easily lead to his identification. [12] The respondent also pointed out that the applicant’s criminal history check would not reveal the applicant’s convictions because they were dealt with in the Children's Court. This raises the issue of when is a conviction spent. [13] The respondent contended that the applicant was a child at the time of the commission of the most serious offence and raised the issue of whether he should have to live with it for the rest of his life. In favour of making a non-publication order the respondent acknowledged that the applicant has children in his care. [14] At the present time the children in the applicant's care do not know about his offending behaviour. There will be longer-term and broader implications if the order is not granted and this is not a matter for idle curiosity. [15] To clarify any doubt the applicant has not been charged with a sexual offence where it may well be argued that the public has a right to know the name and other details of the perpetrator. DECISION [16] I am conscious of the comments of the Appeal Tribunal in the decision of FGC4 at [15] to the effect: In previous decisions the Tribunal has given weight to arguments that the publication of personal identity in cases where blue cards have been restored on review might deter people from exercising a right to seek that review and there is, therefore, a public interest in taking steps to prevent identification. 4 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291. -- 3 of 4 -- 4 [17] There is no doubt in this matter that the applicant will seek to withdraw his substantive application if a non-publication order is not made. In my view this is a significant matter, which must be considered carefully. I am satisfied in relation to this application that the publication of the applicant’s details would be contrary to the public interest. The charges that were brought against him occurred when he was still a child according to the law5 at the time. [18] I have considered the submissions and material presented to the Tribunal and I have determined that in the interests of justice a non-publication order should be granted. I do so because I have formed the view that despite making an order for non-publication the principles of openness and accountability may still be achieved and maintained. [19] The public interest will be served by permitting the public access to details of the substantive decision and the reasoning behind it. I believe that this decision can be justified on the basis that it is consistent with the principles that apply in relation to children who are convicted of criminal offences. [20] I therefore make the following order: Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant, the locality of the applicant and the identity of his children and step-children. 5 Juvenile Justice Act 1992 (Qld). -- 4 of 4 --