Quinn v Director General, Department of Justice and Attorney General [2019] QCAT 275

Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] VicRp 1; [1983] 1 VR 1

[1] On 9 May 2018, Ambrose Eugene Quinn ('the applicant') made an application to be issued with a positive notice and a blue card. Upon receipt of that application, the respondent undertook a criminal history check on the applicant. The information received from the police ('the police information') indicated that he had a criminal history in Queensland which included a conviction for sexual assault.[1]

[2] After receiving the police information, the respondent wrote to the applicant to advise him that the police information raised concerns about his eligibility to hold a blue card.[2] He was provided with an opportunity to respond, which he did. After consideration of his response, the respondent issued a negative notice to him on 19 November 2018.

[3] The applicant's police information contained three entries on his criminal history, all of which were convictions in the Magistrates Court jurisdiction. In 1993, he was fined for refusing to give his name and address to the police. No conviction was recorded on that occasion. In 2007, he contravened a direction given to him by police and he was also fined for that offence. Again, no conviction was recorded. The most recent incident took place in 2009 when he was convicted for the offence of sexual assault. On that occasion he again received a fine and no conviction was recorded. The specifics of those offences will be discussed in greater detail later in these reasons.

[4] Because the respondent decided to issue the applicant with a negative notice, he exercised his option to review[3] that decision pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld) ('Working with Children Act').[4]

[5] When undertaking an administrative review, the tribunal effectively 'stands in the shoes' of the original decision maker.[5] There must be a fresh hearing on the merits of the application[6] and the tribunal's purpose is to produce the correct and preferable decision.[7] The decision reached by the tribunal must be based on the material before the tribunal at the time of the review hearing[8] and the tribunal must apply the principle that the welfare and best interests of children is paramount.[9]

[6] In arriving at a conclusion of what is the correct and preferable decision, the tribunal has the discretion to either confirm or amend the respondent's original decision; or set aside the respondent's original decision and substitute its own decision; or set aside the respondent's decision and return the matter for consideration to the original decision maker with directions the tribunal considers appropriate.[10]

[7] Every child is entitled to be cared for in a way that protects them from harm. The welfare and best interests of children is paramount[11] and an objective of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children in Queensland.[12] Notwithstanding the objective focusing on the protection children from harm within places of employment,[13] it is not the intention of the legislation to punish an applicant twice if they have acquired a police or disciplinary record.

[8] It is incumbent upon the respondent when a blue card application is received to apply the provisions within the Working with Children Act in consideration of the eligibility of an applicant, particularly where an applicant has any adverse police information. The discretion lies with the respondent to issue a negative notice, but only if the respondent is satisfied that it would not be in the best interests of children to do otherwise. [14]

[9] In reaching a conclusion to exercise its discretion that a negative notice should be issued, the respondent must consider all of the evidence, information and facts. That discretion should only be exercised if the respondent is satisfied that 'an exceptional case' exists, and the issuing of a positive notice would not be in the best interests of children.

[10] Little guidance can be found within the Working with Children Act in determining an accurate description of what is actually an exceptional case. Although not defined within the legislation, the term has been widely referenced by this jurisdiction, as well as various other jurisdiction such as the state courts of Queensland and other state courts of the Commonwealth. It is clear that a general rule cannot be applied with regard to what an exceptional case is and these types of cases are matters of discretion and each case should be determined on its own set of facts.[15]

[11] In returning to the applicant's criminal history, it is noted that there are three entries, of which the first two in time are neither classified as serious or disqualifying offences. However, the latest entry is defined as a serious offence.[16]

[12] At about 3:00am on 1 July 1993, police were called to an incident outside what was then called the Wintergarden Tavern in the Queen Street Mall in Brisbane where the applicant and another male person were fighting. During the course of the police enquiries, the applicant refused to provide the police with his personal details, including his name and address. Not surprisingly, he was charged accordingly.[17] He was released from custody on bail and he later appeared in the Brisbane Magistrates Court where he entered a plea of guilty to the charge. He was fined $50.00 and no conviction was recorded.

[13] The applicant told the tribunal that his recollection of that event was that he was grossly intoxicated at the time.

[14] At approximately 2:10am on 2 August 2007 police saw a numerous people standing on the footpath outside the entrance to the Bo Jangles Nightclub in Gladstone. Their attention was particularly drawn to two people, one of which was the applicant.

[15] The applicant and the other person had been refused entry to the nightclub by the security staff. The applicant appeared intoxicated and he was behaving in a disorderly manner which was disrupting the peaceful and orderly conduct of other members of the public at those premises.

[16] The police gave the applicant an official move on direction and he was told to move away from the nightclub. He refused to move and was arrested and taken into custody and charged with the offence. He was later released from custody and bailed to appear in the Gladstone Magistrates Court where he pleaded guilty. He was given a fine and no conviction was recorded.

[17] On that occasion the applicant had been concerned for his friend who had become involved in an altercation and that is why he declined to abide by the police direction. He told the tribunal that like the 1993 entry on his criminal history, he was again grossly intoxicated.

[18] At approximately 10:00pm on 16 May 2009, a taxi driven by a female complainant picked up the applicant and his friend from a hotel in Gladstone. The applicant seated himself in the back seat of the taxi, on the passenger side. The taxi then drove to an address in Gladstone and dropped off the applicant's friend. The applicant was then driven to a separate destination. On the way to that destination he reached over the driver's seat and using his open left hand, he cupped the left breast of the female taxi driver. She sternly said to him 'What do you think you're doing? Don't touch me please'. He again attempted to touch her breast and was again told by her not to do it.

[19] The female taxi driver then delivered the applicant to his destination. He paid for the fare and exited the taxi. It would seem that the female taxi driver then went about her normal course of business for the remainder of the evening. The following day, she went to the Gladstone police station and reported the incident. Ten days later the applicant went to the police station where he was interviewed about the offence. He told the police that because he was heavily intoxicated, he did not recall assaulting the taxi driver.

[20] The applicant was charged with sexually assault the taxi driver. He appeared in the Gladstone Magistrates Court on 29 June 2009 and pleaded guilty. He was legally represented during the sentencing process and the court was told that on that day the applicant and his friend had won $1,400 on the horse races. They decided to try and drink their entire winnings at a local hotel. It was not a surprise that after an 8½ hour drinking session, in which the applicant consumed 20 or more schooners of heavy XXXX beer, a taxi was called for them.

[21] The applicant's legal representative described to the court that the applicant was 'legless' when he got into the taxi and he did not remember the ride home. The submissions made on his behalf also included a recognition by him that alcohol had led to this incident and that he was ashamed of his conduct.

[22] In sentencing the applicant, the presiding Magistrate commented that whilst the nature and the circumstances of the offending were at the lower end of seriousness, it was still a serious offence. Nevertheless, it was accepted by the court that there were mitigating circumstances such as the applicant bringing the matter before the court at the earliest opportunity for a plea, and his relocation to Brisbane along with not disclosing the circumstances of the offence to his mother and sister which all demonstrated that he experienced significant shame and embarrassment.

[23] The penalty imposed upon the applicant by the court was that he was fined $1,500 and he was ordered to pay $500 by way of compensation to the complainant. No conviction was recorded.

[24] So far as his employment at the time, he had been employed by the Gladstone Area Group Apprentice Limited ('GAGAL'), which is a not for profit group training organisation whose core business is the provision of apprentices and trainees to businesses throughout Central Queensland. It was a requirement of his employment with GAGAL that he be the holder of a blue card. Because he was convicted of the sexual assault, he lost his blue card and ultimately lost his employment.

[25] It appears that a common feature of all three of the applicant's appearances in court related to his consumption of large quantities of alcohol. The most serious matter is obviously the one relating to the sexual assault. I do not intend to address the circumstances of the first two offences as the facts outlined earlier are self-explanatory. However, I do note that there is a common denominator in all the offences is the applicant's excessive consumption of alcohol.

[26] My observations in regard to the sexual assault conviction are that notwithstanding that the touching of the female taxi driver on her breast was unwelcome and unlawful, it seems that this was not immediately overly concerning for her. From the facts, what appears to have happened is that after the assault took place she continued on with the journey to the applicant's destination where he paid for the fare when she dropped him off. It was not until the next day that she made her complaint. However, I accept there may have been many reasons for her delay in reporting the matter and her delay does not in any way favour the applicant's position.

[27] I accept that the applicant was then, and is still ashamed and embarrassed about his conduct on that evening. His legal representative told the court at his sentencing of this very fact. The applicant told the tribunal that he was deeply remorseful for his conduct and that he had taken steps to ensure that he never placed himself in a position where this type of behaviour could occur again. I accept that he displayed insight into his behaviour when he told the tribunal that he considered that his behaviour had an overall effect upon the female complainant and that it would have made her feel violated, vulnerable, scared and insecure.

[28] At the hearing, the applicant acknowledged that his judgement on that night was grossly inappropriate and it deprived the female complainant of her right to feel safe within their own work environment. He said that he was troubled by his behaviour and he has given a great deal of thought about his actions and how this may affect others close to her and how that would make them feel upset and distressed as well. He added that he would not want any other woman to go through what the female complainant went through on that night.

[29] The applicant recognises that alcohol played a significant part in his life, in particular it being a common denominator in all three occasions where he was been arrested. Since 2009, he has met and married his wife and this has had a dramatic impact upon his attitude to the use of alcohol. He told the tribunal that after his conviction, he took stock of his alcohol consumption and now makes sure that he does not drink to excess. He gave examples of him playing golf and only having two or three beers after his golf game.

[30] Evidence was provided to the tribunal from the applicant's wife.[18] I was very impressed by her candour. In the applicant's favour, it was very early in his relationship with her that he disclosed to her the details of his criminal history, in particular the sexual assault incident. She told the tribunal that she has never seen him drink excessively, and she has seen a reduction in his consumption of alcohol. She said that there had never been any issue relating to alcohol that has upset or concerned her and she viewed him as a social drinker.

[31] The tribunal also heard from the applicant's friend with whom he plays golf with.[19] Although I have no criticism of the evidence of this witness, I place very little weight on what he said because I was not surprised to hear that he had only praise for the applicant, and positive things to say about him. I do note that this is not unique in these type of proceedings given the close relationship between the witness and the applicant.

Consideration of the paramount principle and conclusion

[32] The questions to be considered are firstly, whether I can be satisfied that there are protective factors in place which sufficiently mitigate the concerns that the applicant would pose a risk to children; and secondly, whether I can be satisfied that there is little or no risk of the repetition of the applicant's behaviour. A third question is whether the risk of harm to children is sufficiently negatived so that it could be concluded that a positive notice would not harm the best interests of children.

[33] In finding an answer to those questions, a complete analysis is required of all the circumstances relating to the applicant's antecedents and the determination reached from that analysis should be balanced against the principle that the welfare and best interests of a child are paramount.[20]

[34] In regard to the positive risk factors, I am satisfied that the applicant has demonstrated an awareness and an appreciation of the risk that excessive consumption of alcohol plays in his life. I am also satisfied that he has put in place preventative features in his life so that he is now able to better understand and identify the triggers to his excessive consumption of alcohol. I am also satisfied that with the support of his wife, there is every likelihood that those preventative strategies will remain in place.

[35] In looking at the antecedents of the applicant, along with his criminal history I am satisfied that the serious offence which took place in 2009 is something which happened outside his character. At times, excessive alcohol consumption has been used as an explanation for a person's behaviour, however in my view it can never be completely relied upon as an excuse. To the applicant's credit, in both 2009 and 2019 he acknowledged that his behaviour towards the female taxi driver was inappropriate, and he accepted that this would have adversely impacted upon her and anyone closely associated with her. I am satisfied that the applicant displayed significant insight into what took place on that occasion and has an appreciation of the flow on effect of his actions upon the female complainant.

[36] I am particularly mindful that since 2009 there have been no concerning issues raised with regard to the adult's character and there is no evidence that what took place on that occasion would impact upon his employment with children. Notwithstanding the circumstances of the actual offence, it was not a prolonged attack upon the taxi driver, and he ceased his actions almost immediately. The offence did not involve children; it was not committed in the presence of a child or young person; and nor did it occur within the course of the applicant's employment. These are important points when giving consideration as to the suitability of any application.

[37] Having regard to the features already identified in my reasons so far as the applicant's insight and preventative strategies, I am satisfied that should the applicant be issued with a positive notice and a blue card, any risk to children has been sufficiently negated.

[38] I have paid particular attention to, and given serious consideration to the facts and circumstances which gave rise to the applicant being convicted for a sexual assault. I note that the presiding Magistrate, who was in a position to be appraised of all the facts and circumstances, considered that the behaviour of the applicant was at the lower end of seriousness and that he declined to record a conviction.

[39] Having regard to all the features of this matter, I am satisfied, on the balance of probabilities, that the applicant's case is not an exceptional case and the best interests of children would not be harmed if a positive notice and a blue card were to be issued to him.

[40] That the decision of the Director General, Department of Justice and Attorney-General dated 19 November 2018 that the applicant's case is 'exceptional' within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the tribunal's decision that there is no exceptional case.

[1] Criminal Code Act 1899 (Qld), s 352.

[4] Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 353 and 354.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[8] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

[9] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[11] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6.

[12] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.

[13] Commissioner for Children and Young People Bill, second reading speech, Queensland Parliament Hansard, 14 November 2000, p. 4391.

[14] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221.

[15] Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [34] endorsing the observation made by Fullagar J in Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] VicRp 1; [1983] 1 VR 1.

[16] Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 2.

[17] Pursuant to the provisions of the Drugs Misuse Act 1986 (Qld), s 22(1). It is noted that there is no suggestion contained within the facts alleged by the police that the applicant was involved with the use, or otherwise involved in dangerous drugs.

[20] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a).