APS v Commissioner for Children and Young People and Child Guardian [2012] QCAT 270

CITATION: APS v Commissioner for Children and Young People and Child Guardian [2012] QCAT 270 PARTIES: APS (Applicant/Appellant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML176-11 MATTER TYPE: Childrens matters HEARING DATE: 19 March 2012 HEARD AT: Ipswich DECISION OF: Ron Joachim, Presiding Member Pam Goodman, Member DELIVERED ON: 1 June 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal sets aside the decision of the Commissioner to issue a negative notice to APS. 2. The Tribunal prohibits the publication of the name of the applicant, the names of the applicant’s children, and the name of the child for whom the applicant’s parents-in-law have long term guardianship. CATCHWORDS: Childrens matters – blue card – review of decision of Commissioner for Children and Young People and Child Guardian to issue a negative notice – whether commissioner and Tribunal have jurisdiction to issue a blue card – where applicant has extensive criminal history involving drugs and assaults – where applicant lives in duplex and where adjacent duplex houses a former child in care who is now subject to a long term guardianship order Child Protection Act 1999 Commission for Children and Young People and -- 1 of 5 -- 2 Child Guardian Act 2000, ss 156, 199, Schedule 1 Children Services Tribunal Act 2000 (repealed), s 38 Queensland Civil and Administrative Tribunal Act 2009, ss 19, 24, 66 GAA re [2006] QCST 12 APPEARANCES and REPRESENTATION (if any): APPLICANT: APS RESPONDENT: Karyn Alton REASONS FOR DECISION [1] APS is the applicant in these proceedings. On 23 September 2010 APS applied to the Commissioner for Children and Young People and Child Guardian (the Commissioner) for a blue card. [2] The Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) provides the scheme for the issuing of what are known as “blue cards” which enable persons to work with children. Pursuant to section 199, a person who proposes to employ another person in “regulated employment” may apply for a prescribed notice about the other person. A positive notice will result in a blue card being issued. A negative notice means that the person is not issued with a blue card. [3] Section 156 and Schedule 1 of the Act set out what is “regulated employment”. Relevantly, if a person is providing care for a child under the Child Protection Act 1999 as an approved carer, each adult member of the person’s household is taken to be a volunteer who is engaged in regulated employment. [4] APS’s application was lodged on the basis that he was an adult member of a household in which his parents-in-law were foster carers and so he was required to obtain a blue card. [5] On 20 June 2011 the Commissioner issued APS with a negative notice under the Act. The Commissioner took into account APS’s considerable criminal history spanning 1993-2003 which involved stealing, assaults, and a range of drug related offences. [6] On 29 September 2011 APS applied to this Tribunal for a review of the decision to issue the negative notice, and for an extension of time to lodge his application. The extension of time was granted by the Tribunal. [7] The Tribunal heard the application regarding the issue of the negative notice in Ipswich on 19 March 2012. -- 2 of 5 -- 3 [8] In a proceeding for a review of a reviewable decision, the functions of the Tribunal are outlined in section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act): Functions for review jurisdiction (1) In a proceeding for a review of a reviewable decision, the tribunal may— (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. [9] Early in these proceedings a possible jurisdictional issue was raised after evidence was received that APS’s parents-in-law had been granted guardianship of the child in their care. At the directions hearing on 13 December 2011 the Commissioner was directed to file with the Tribunal a submission as to whether APS required a blue card in these circumstances. [10] On 20 February 2012 the Commissioner advised the Tribunal that the Department of Communities – Child Safety had advised that on 3 August 2009 APS’s parents-in-law had been granted long term guardianship of the child in their care. The Commissioner advised that in these circumstances APS was not required to hold a blue card. [11] The Commission suggested that APS could either withdraw his application (leaving the negative notice in place but not affecting his ability to reside in his home), or he could proceed with the review. [12] The jurisdictional issue was raised at the commencement of the hearing. APS advised that he sought to have the negative notice set aside and so wished to proceed with the hearing. APS advised that he was not seeking a positive notice, but that he did not believe that the negative notice should remain in place. [13] The Tribunal took evidence from a range of witnesses, and submissions from both parties. The Tribunal reserved its decision following the hearing. [14] On 2 April 2012 the Tribunal wrote to the parties enclosing a copy of the decision of the former Childrens Services Tribunal GAA re [2006] QCST 12. In that case, GAA was managing his son’s football team. The sporting body told GAA that, as manager, he was required to hold a blue card. The Commissioner refused his application and issued a negative notice. GAA lodged an application with the then Children Services Tribunal seeking that the negative notice be set aside, and that he be issued with a positive notice. That is to say, he sought an order that would result in a blue card being issued to him. [15] On 8 September 2006 the Childrens Services Tribunal determined that it had no jurisdiction to issue a negative or positive notice. The Tribunal set -- 3 of 5 -- 4 aside the decision to issue a negative notice to GAA but no positive notice was issued. The Tribunal’s reasoning is summarised as follows: 1. From the time the original application for a blue card was lodged, GAA was not engaged in “regulated employment” of the sporting club as defined under the Act. 2. The Commissioner had not acted ultra vires or in error in assessing GAA’s application, as the Commissioner had an original presumptive jurisdiction to do so by the mere fact that the sporting club had alleged on the application form that GAA was in regulated employment. 3. As GAA was found on the evidence not to be in regulated employment and did not require a blue card the Commissioner did not have the jurisdiction to issue a negative notice. 4. Under section 38 of the repealed Children Services Tribunal Act 2000 the Tribunal was able to set aside the decision of the Commissioner to issue a negative notice as the Tribunal had all the powers and functions of the Commissioner. However neither the Commissioner nor the Tribunal had jurisdiction to issue a positive notice. [16] The Commissioner now submits that the facts in this case mirror the facts of GAA, and the original decision of the Commissioner in issuing APS with a negative notice on 20 June 2011 is a voidable one. [17] APS’s application was lodged on the basis that his wife’s parents were foster carers. The information contained in the application described a category of regulated employment under the CCYPCG Act, and the Commissioner had a presumptive jurisdiction to assess and process the application. [18] Further evidence has now been obtained and it is clear that as APS’s parents-in-law were granted long term guardianship on 3 August 2009, he did not require a blue card from that date. [19] The Tribunal agrees with the Commissioner’s submissions that, “although the relevant determining legislation has been amended and appealed subsequent to 2006, the practical effect of the current legislation in force and binding the Tribunal has not changed” since the GAA decision. [20] Section 19 of the QCAT Act outlines how the Tribunal exercises its review jurisdiction. Most relevantly, the Tribunal has all the functions of the decision maker for the reviewable decision being reviewed. [21] The Tribunal agrees with the Commissioner that the decision being reviewed is not the decision to issue the negative notice as such. The Tribunal accepts the Commissioner’s submission in this case that the Tribunal is able to set aside the Commissioner’s decision to issue a -- 4 of 5 -- 5 negative notice on the grounds of a lack of jurisdiction. The Tribunal also accepts the Commissioner’s submissions that there is no jurisdiction for either a negative notice or a positive notice to be issued by the Tribunal. [22] The applicant submitted that he would accept an outcome similar to GAA. [23] In all the circumstances the order of the Tribunal will be that the Tribunal will set aside the decision of the Commissioner to issue a negative notice. Neither the Commissioner nor the Tribunal has the power or jurisdiction to issue APS with a blue card as he is not engaged in regulated employment. [24] The Tribunal is satisfied that it is in APS’s children’s best interests, in the interest of the child under long term guardianship and in the interest of justice that a confidentiality order be made in these proceedings so that the children are not able to be identified in any way. Accordingly pursuant to section 66 of the QCAT Act the Tribunal prohibits the publications of the names of the applicant and his children and the name of the child under long term guardianship. The reasons will be published in a de-identified format. -- 5 of 5 --