Civil and Administrative Tribunal
ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85 (8 March 2023) – Queensland Civil and Administrative Tribunal
‘Discipline finding pursuant to s7.4 of the police service administration act 1990 (qld)’ – ‘Evidence’ – ‘Police officer offender’ – ‘Protection order’
Proceedings: Police officer’s application for review of the respondent’s decision on a disciplinary finding pursuant to s7.4 of the Police Service Administration Act 1990 (Qld) and proposed sanction made 14 September 2020.
Issue: Whether the findings of domestic violence were valid, and whether the domestic violence constituted misconduct.
Facts: The first allegation was of acts of domestic violence committed against the applicant’s wife following their separation after the discovery of her affair. The applicant was alleged to have read her texts, private emails and Skype account messages and had consented to the grant of a protection order to his wife.
The final four aspects of contravened conduct were unrelated to domestic violence.
Decision and reasoning: Domestic violence was made out, and held to be unacceptable conduct from a police officer in a private setting and therefore misconduct.
The Tribunal found that the applicant’s consent to the protection order was not evidence of acts of domestic violence, as no admissions were made in the order and its terms had no suggestion of acts of domestic violence. On the evidence, the Tribunal was satisfied that the applicant accessed his partner’s texts and emails without her permission but was unable to make the same finding relating to her Skype account.
The Tribunal found that a physical altercation had occurred on one occasion over the phone and that this demonstrated that the applicant’s ex-partner was at least offended by the applicant accessing her private emails and texts. Domestic violence was therefore made out under s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) (includes conduct that is ‘offensive’).
In assessing whether the domestic violence constituted misconduct, the Tribunal considered whether the conduct that met that which the community could reasonably expect of a police officer. The significance of the deeply personal and distressing context of the applicant’s behaviour was noted, the Tribunal stating it made his relatively low-level behaviour explicable to the community. However, it was nonetheless found to be unacceptable conduct from a police officer in a private setting. The Tribunal confirmed the finding made at the disciplinary hearing in relation to the domestic violence matter.
NK v Director-General, Department of Justice and Attorney-General [2021] QCAT 270 (30 July 2021) – Queensland Civil and Administrative Tribunal
‘Administrative law’ – ‘Breach of protection order’ – ‘Coercive control’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Threats to kill’ – ‘Working with children negative notice’
Proceedings: Application for external review of the Department’s decision to issue the applicant a negative notice.
Facts: The applicant’s ex-partner had been granted a ‘Protection Order for ongoing physical violence and controlling behaviour’ [13]. Within five months, the applicant was convicted of contravening the Order by being with his ex-partner and her two children, one of whom was the applicant’s son [1]. As a result, the applicant was issued with a ‘negative notice’ to work with children preventing the issue of a positive notice blue card. The applicant applied for administrative review of the Department’s decision. As the applicant had not been convicted of a ‘serious offence’, he was entitled to be issued with a positive notice unless his case was ‘exceptional’ [2]. A case is exceptional if it is not in the best interests of children to issue a positive notice.
Decision and reasoning: The Tribunal confirmed the department’s decision that the applicant’s case was exceptional.
The Tribunal assessed the risk in allowing the applicant to work with children, ‘by identifying and weighing protective factors with risk factors’ [3]. The Tribunal accepted that the applicant had taken steps to address his issues, as evidenced by his participation in a men’s behavioural change program [9]. However, the applicant was not ‘aware of the psychological and emotional impact of his behaviour on others’ nor able to ‘exercise restraint and self-control… sufficient to work with children’ [28]. The Tribunal noted that applicant’s submissions focused on ‘minimising and not admitting responsibility’ for his actions while failing to demonstrate his ability to identify the triggers for his behaviour or use appropriate coping strategies [10]. Therefore, the Tribunal was not satisfied that the applicant had reduced ‘the risk of his susceptibility to [the offending behaviour] in stressful situations’ [20]. The Tribunal noted that the applicant faced recent and serious allegations of ongoing physical violence and controlling behaviour, which included threatening to kill his partner, and subjecting her to physical and verbal abuse in front of children. This behaviour had continued despite the Order, which he had breached within 5 months of its commencement [13]. Therefore, the applicant’s ‘limited insight into the seriousness of his behaviour and its impact on others, together with evidence of ongoing coercive control’ were risk factors that outweighed protective factors and made the applicant an unsuitable candidate for working with children [26].
Applicant SIL v Scheme Manager, Victim Assist Queensland, Department of Justice and Attorney-General [2021] QCAT 237 (13 July 2021) – Queensland Civil and Administrative Tribunal
‘Administrative law’ – ‘Application for financial assistance’ – ‘Coercive control’ – ‘Evidence issues’ – ‘False police reports’ – ‘Listening to Victims’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Prior acts of domestic violence’ – ‘Systems abuse’ – ‘Victim as (alleged) perpetrator’ – ‘Visa threats’ – ‘Weapon’
Proceedings: Application for external review of the Department’s decision to deny an application for financial assistance.
Facts: The male perpetrator and female victim were married and living together with their infant daughter. The perpetrator was sponsoring the victim, a Taiwanese citizen, for a permanent visa. The victim reported being subjected to ‘ongoing incidents of strangulation, financial, emotional, verbal and social abuse’, and ‘control and coercion’, involving threats of deportation and child removal [21]. In December 2017, the victim reported to police that her husband had attacked her with a knife. However, due to the victim speaking ‘very limited English’ police interviewed the perpetrator only, who stated that he had been attacked by the victim [33]. In February 2019, the victim’s application for financial assistance under the Victims of Crime Assistance Act 2009 (Qld) (‘the Act’) was refused [5].
Decision and Reasoning: The original decision was set aside and returned for reconsideration with a direction that the victim was eligible for financial assistance.
Under the Act, a person who is directly injured by an act of violence is eligible for financial assistance [9]. The Tribunal reviewed the evidence of the December 2017 incident and found that it had directly resulted in an injury to the victim [39]. The Tribunal’s finding was based on evidence that the victim had been admitted to hospital with lacerations to her hand, while her husband had not required medical attention [37]. The Tribunal acknowledged that there were ‘discrepancies’ in the account provided by the victim to hospital staff but found that this was due to the language barrier and the victim’s physical state, which included dizziness [31]. The Tribunal accepted the victim’s version of events and noted that she had been ‘denied a voice’ by Queensland Police [33]. In addition, the Tribunal noted that the perpetrator’s position as the victim’s sponsor gave him ‘considerable power’ over the victim, as she was required to be in a relationship with him for 2 years to be eligible for a permanent visa [36].
SF v Department of Education [2021] QCAT 10 (13 January 2021) – Queensland Civil and Administrative Tribunal
‘Administrative law’ – ‘Applicant and children in hiding to escape domestic violence’ – ‘Application for home education registration’ – ‘Confidentiality provisions’ – ‘Following, harassing monitoring’ – ‘Human rights’ – ‘Non-disclosure of registered address’ – ‘Ongoing risk of harm’ – ‘People with disability and impairment’ – ‘Separation’
Proceedings: Application for external review of the Department’s decision to deny an application for home education registration.
Facts: The applicant and her children had moved in an attempt to escape domestic violence and were forced to hide their location to keep the family safe. The applicant’s former partner had used numerous unlikely resources to locate her. One of the applicant’s children had been diagnosed with conditions affecting their ability to learn, and the applicant applied to the Department of Education to home school the child. Although her application met the requirements for home education, the Department did not grant the application as the applicant did not provide her street number, street name and town name. Where the approved form required details of “residential address” and “address where the home education will be delivered”, the applicant inserted “address suppressed (due to privacy, see attached)” with a town name, a postal address and mobile phone number.
Decision and reasoning: The decision of the Department of Education was set aside and substituted with a decision to grant home education registration for the student.
The Tribunal found that none of the provisions of the Education (General Provisions) Act 2006 (Qld), read together or in isolation, imposed an express obligation on the applicant to disclose her street number, street name and town name (at [9]-[16]). In addition, while the approved form – which was required for the application – asked the applicant to provide details of her “residential address” and “address where the home education will be delivered”, the Tribunal found that the requirements of this will vary according to the individual circumstances of the case, within the context of the overarching objects and guiding principles. Here, the form could not operate “to require SF to disclose these details in circumstances where it compromises her and her family’s safety contrary to those objects and guiding principles” (at [17]-[26]).
The Department made a number of submissions, including that the confidentiality provisions of the Act and its own internal policies were sufficient to ameliorate the risk of unauthorised disclosure. However, the Tribunal was not satisfied that these were sufficient to ameliorate the risk, based on the applicant’s evidence and submissions regarding the circumstances of her and her children (at [29]). As at [30]-[31]:
“The risk for SF is that the confidentiality provisions and policies repose a discretion in departmental officers about the use and disclosure of information, require interpretation by departmental officers and leave it open for a person to apply to the department to access the information under the Right to Information Act 2009 (Qld) and Information Privacy Act 2009 (Qld). Moreover, adding another layer of people with access to SF’s information increases the opportunity for human error or failure, with potentially tragic and irreversible consequences.
The more information SF is required to disclose and the more people who have access to that information, the greater the risk to her and her children…”
Moreover, while it was not strictly necessary to consider the substantial compliance provisions of the Acts Interpretation Act 1954 (Qld) as the Tribunal found that the applicant had provided sufficient information to meet the procedural requirements of the application form, the Tribunal was satisfied of substantial compliance in any event (at [35]-[41]).
Finally, the Tribunal’s decision and interpretation of the statutory provisions was compatible with the Human Rights Act 2019 (Qld). As at [46]-[47]:
“SF and her children have moved to escape domestic violence. They are still at risk of harm. The child she seeks to home school has a dual diagnosis of conditions affecting the child’s ability to learn, sufficient to constitute an impairment and therefore a protected attribute under the Anti-Discrimination Act 1991 (Qld). SF has identified that her child learns best with one-on-one educational support and has tailored a detailed, goal-directed home education program suited to the child’s needs. An interpretation that would mandate SF to provide her street number, street name and town name before granting her application for home education in these circumstances, is not an interpretation that least infringes her and her family’s human rights.
Moreover, the Tribunal does not accept this interpretation limits human rights only to the extent that is reasonable and demonstrably justifiable. The Tribunal accepts SF’s evidence of the serious risk to her and her family from an interpretation mandating her to disclose her street number, street name and town name. The Tribunal does not accept that the confidentiality provisions of the Act and the Department’s own internal policies are sufficient to uphold her children’s right to protection in their particular circumstances.”
An interpretation requiring the applicant to disclose her street number, street name and town name was not necessary to achieve the purposes of ensuring the child was properly registered and the applicant was able to be contacted in circumstances where she had provided a postal address, mobile number and details of her circumstances (at [48]).
Civil and Administrative Tribunal
ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85 (8 March 2023) – Queensland Civil and Administrative Tribunal
‘Discipline finding pursuant to s7.4 of the police service administration act 1990 (qld)’ – ‘Evidence’ – ‘Police officer offender’ – ‘Protection order’
Proceedings: Police officer’s application for review of the respondent’s decision on a disciplinary finding pursuant to s7.4 of the Police Service Administration Act 1990 (Qld) and proposed sanction made 14 September 2020.
Issue: Whether the findings of domestic violence were valid, and whether the domestic violence constituted misconduct.
Facts: The first allegation was of acts of domestic violence committed against the applicant’s wife following their separation after the discovery of her affair. The applicant was alleged to have read her texts, private emails and Skype account messages and had consented to the grant of a protection order to his wife.
The final four aspects of contravened conduct were unrelated to domestic violence.
Decision and reasoning: Domestic violence was made out, and held to be unacceptable conduct from a police officer in a private setting and therefore misconduct.
The Tribunal found that the applicant’s consent to the protection order was not evidence of acts of domestic violence, as no admissions were made in the order and its terms had no suggestion of acts of domestic violence. On the evidence, the Tribunal was satisfied that the applicant accessed his partner’s texts and emails without her permission but was unable to make the same finding relating to her Skype account.
The Tribunal found that a physical altercation had occurred on one occasion over the phone and that this demonstrated that the applicant’s ex-partner was at least offended by the applicant accessing her private emails and texts. Domestic violence was therefore made out under s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) (includes conduct that is ‘offensive’).
In assessing whether the domestic violence constituted misconduct, the Tribunal considered whether the conduct that met that which the community could reasonably expect of a police officer. The significance of the deeply personal and distressing context of the applicant’s behaviour was noted, the Tribunal stating it made his relatively low-level behaviour explicable to the community. However, it was nonetheless found to be unacceptable conduct from a police officer in a private setting. The Tribunal confirmed the finding made at the disciplinary hearing in relation to the domestic violence matter.
NK v Director-General, Department of Justice and Attorney-General [2021] QCAT 270 (30 July 2021) – Queensland Civil and Administrative Tribunal
‘Administrative law’ – ‘Breach of protection order’ – ‘Coercive control’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Threats to kill’ – ‘Working with children negative notice’
Proceedings: Application for external review of the Department’s decision to issue the applicant a negative notice.
Facts: The applicant’s ex-partner had been granted a ‘Protection Order for ongoing physical violence and controlling behaviour’ [13]. Within five months, the applicant was convicted of contravening the Order by being with his ex-partner and her two children, one of whom was the applicant’s son [1]. As a result, the applicant was issued with a ‘negative notice’ to work with children preventing the issue of a positive notice blue card. The applicant applied for administrative review of the Department’s decision. As the applicant had not been convicted of a ‘serious offence’, he was entitled to be issued with a positive notice unless his case was ‘exceptional’ [2]. A case is exceptional if it is not in the best interests of children to issue a positive notice.
Decision and reasoning: The Tribunal confirmed the department’s decision that the applicant’s case was exceptional.
The Tribunal assessed the risk in allowing the applicant to work with children, ‘by identifying and weighing protective factors with risk factors’ [3]. The Tribunal accepted that the applicant had taken steps to address his issues, as evidenced by his participation in a men’s behavioural change program [9]. However, the applicant was not ‘aware of the psychological and emotional impact of his behaviour on others’ nor able to ‘exercise restraint and self-control… sufficient to work with children’ [28]. The Tribunal noted that applicant’s submissions focused on ‘minimising and not admitting responsibility’ for his actions while failing to demonstrate his ability to identify the triggers for his behaviour or use appropriate coping strategies [10]. Therefore, the Tribunal was not satisfied that the applicant had reduced ‘the risk of his susceptibility to [the offending behaviour] in stressful situations’ [20]. The Tribunal noted that the applicant faced recent and serious allegations of ongoing physical violence and controlling behaviour, which included threatening to kill his partner, and subjecting her to physical and verbal abuse in front of children. This behaviour had continued despite the Order, which he had breached within 5 months of its commencement [13]. Therefore, the applicant’s ‘limited insight into the seriousness of his behaviour and its impact on others, together with evidence of ongoing coercive control’ were risk factors that outweighed protective factors and made the applicant an unsuitable candidate for working with children [26].
Applicant SIL v Scheme Manager, Victim Assist Queensland, Department of Justice and Attorney-General [2021] QCAT 237 (13 July 2021) – Queensland Civil and Administrative Tribunal
‘Administrative law’ – ‘Application for financial assistance’ – ‘Coercive control’ – ‘Evidence issues’ – ‘False police reports’ – ‘Listening to Victims’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Prior acts of domestic violence’ – ‘Systems abuse’ – ‘Victim as (alleged) perpetrator’ – ‘Visa threats’ – ‘Weapon’
Proceedings: Application for external review of the Department’s decision to deny an application for financial assistance.
Facts: The male perpetrator and female victim were married and living together with their infant daughter. The perpetrator was sponsoring the victim, a Taiwanese citizen, for a permanent visa. The victim reported being subjected to ‘ongoing incidents of strangulation, financial, emotional, verbal and social abuse’, and ‘control and coercion’, involving threats of deportation and child removal [21]. In December 2017, the victim reported to police that her husband had attacked her with a knife. However, due to the victim speaking ‘very limited English’ police interviewed the perpetrator only, who stated that he had been attacked by the victim [33]. In February 2019, the victim’s application for financial assistance under the Victims of Crime Assistance Act 2009 (Qld) (‘the Act’) was refused [5].
Decision and Reasoning: The original decision was set aside and returned for reconsideration with a direction that the victim was eligible for financial assistance.
Under the Act, a person who is directly injured by an act of violence is eligible for financial assistance [9]. The Tribunal reviewed the evidence of the December 2017 incident and found that it had directly resulted in an injury to the victim [39]. The Tribunal’s finding was based on evidence that the victim had been admitted to hospital with lacerations to her hand, while her husband had not required medical attention [37]. The Tribunal acknowledged that there were ‘discrepancies’ in the account provided by the victim to hospital staff but found that this was due to the language barrier and the victim’s physical state, which included dizziness [31]. The Tribunal accepted the victim’s version of events and noted that she had been ‘denied a voice’ by Queensland Police [33]. In addition, the Tribunal noted that the perpetrator’s position as the victim’s sponsor gave him ‘considerable power’ over the victim, as she was required to be in a relationship with him for 2 years to be eligible for a permanent visa [36].
SF v Department of Education [2021] QCAT 10 (13 January 2021) – Queensland Civil and Administrative Tribunal
‘Administrative law’ – ‘Applicant and children in hiding to escape domestic violence’ – ‘Application for home education registration’ – ‘Confidentiality provisions’ – ‘Following, harassing monitoring’ – ‘Human rights’ – ‘Non-disclosure of registered address’ – ‘Ongoing risk of harm’ – ‘People with disability and impairment’ – ‘Separation’
Proceedings: Application for external review of the Department’s decision to deny an application for home education registration.
Facts: The applicant and her children had moved in an attempt to escape domestic violence and were forced to hide their location to keep the family safe. The applicant’s former partner had used numerous unlikely resources to locate her. One of the applicant’s children had been diagnosed with conditions affecting their ability to learn, and the applicant applied to the Department of Education to home school the child. Although her application met the requirements for home education, the Department did not grant the application as the applicant did not provide her street number, street name and town name. Where the approved form required details of “residential address” and “address where the home education will be delivered”, the applicant inserted “address suppressed (due to privacy, see attached)” with a town name, a postal address and mobile phone number.
Decision and reasoning: The decision of the Department of Education was set aside and substituted with a decision to grant home education registration for the student.
The Tribunal found that none of the provisions of the Education (General Provisions) Act 2006 (Qld), read together or in isolation, imposed an express obligation on the applicant to disclose her street number, street name and town name (at [9]-[16]). In addition, while the approved form – which was required for the application – asked the applicant to provide details of her “residential address” and “address where the home education will be delivered”, the Tribunal found that the requirements of this will vary according to the individual circumstances of the case, within the context of the overarching objects and guiding principles. Here, the form could not operate “to require SF to disclose these details in circumstances where it compromises her and her family’s safety contrary to those objects and guiding principles” (at [17]-[26]).
The Department made a number of submissions, including that the confidentiality provisions of the Act and its own internal policies were sufficient to ameliorate the risk of unauthorised disclosure. However, the Tribunal was not satisfied that these were sufficient to ameliorate the risk, based on the applicant’s evidence and submissions regarding the circumstances of her and her children (at [29]). As at [30]-[31]:
“The risk for SF is that the confidentiality provisions and policies repose a discretion in departmental officers about the use and disclosure of information, require interpretation by departmental officers and leave it open for a person to apply to the department to access the information under the Right to Information Act 2009 (Qld) and Information Privacy Act 2009 (Qld). Moreover, adding another layer of people with access to SF’s information increases the opportunity for human error or failure, with potentially tragic and irreversible consequences.
The more information SF is required to disclose and the more people who have access to that information, the greater the risk to her and her children…”
Moreover, while it was not strictly necessary to consider the substantial compliance provisions of the Acts Interpretation Act 1954 (Qld) as the Tribunal found that the applicant had provided sufficient information to meet the procedural requirements of the application form, the Tribunal was satisfied of substantial compliance in any event (at [35]-[41]).
Finally, the Tribunal’s decision and interpretation of the statutory provisions was compatible with the Human Rights Act 2019 (Qld). As at [46]-[47]:
“SF and her children have moved to escape domestic violence. They are still at risk of harm. The child she seeks to home school has a dual diagnosis of conditions affecting the child’s ability to learn, sufficient to constitute an impairment and therefore a protected attribute under the Anti-Discrimination Act 1991 (Qld). SF has identified that her child learns best with one-on-one educational support and has tailored a detailed, goal-directed home education program suited to the child’s needs. An interpretation that would mandate SF to provide her street number, street name and town name before granting her application for home education in these circumstances, is not an interpretation that least infringes her and her family’s human rights.
Moreover, the Tribunal does not accept this interpretation limits human rights only to the extent that is reasonable and demonstrably justifiable. The Tribunal accepts SF’s evidence of the serious risk to her and her family from an interpretation mandating her to disclose her street number, street name and town name. The Tribunal does not accept that the confidentiality provisions of the Act and the Department’s own internal policies are sufficient to uphold her children’s right to protection in their particular circumstances.”
An interpretation requiring the applicant to disclose her street number, street name and town name was not necessary to achieve the purposes of ensuring the child was properly registered and the applicant was able to be contacted in circumstances where she had provided a postal address, mobile number and details of her circumstances (at [48]).