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- Unreported Judgment
Mifsud v Director-General, Department of Justice and Attorney-General  QCAT 279
Brock James Mifsud
Director-General, Department of Justice and Attorney-General
23 March 2017
24 July 2017
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY LEGISLATION – GENERALLY – exceptional case – where a review sought of decision to issue a negative notice – where person convicted of possessing a dangerous drug – where offence was not categorised as serious – where evidence of risk factors and protective factors – whether or not case was “exceptional” such that it would not be in the best interests of children for the Director-General to issue a positive notice – where decision that case was “exceptional” was confirmed where decision that case was "exceptional" was set aside
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(a), s 20(2)
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 226(2), s 237, s 354 and s 360
Briginshaw v Briginshaw (1938) 60 CLR 336;  HCA 34
Chief Executive Officer, Department for Child Protection v Scott (No 2)  WASCA 171
Chief Executive Officer, Public Safety Business Agency v Hamilton  QCATA 106
Commissioner for Children and Young People and Child Guardian v FCG  QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher  QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28
Grinrod v Chief Executive Officer, Department for Community Development  WASAT 289
Mr Mifsud represented himself
represented by Mr I.McCowie, Government Solicitor
REASONS FOR DECISION
- Mr Mifsud applied under the Working with Children (Risk Management and Screening) Act 2000 (Qld) for a review of the decision made by the Department on 16 May 2016 to cancel his positive notice and blue card and issue a negative notice.
- Mr Mifsud requires a blue card to continue study for a Diploma in Social Work and Counselling as he is required to undertake placements as part of those courses.
- Under section 354 of the Act, the Tribunal can review a decision of the Director-General to find that an exceptional case exists such that it would not be in the best interests of children to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.
- The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.
- The Act does not define “exceptional case” and phrases such as “exceptional case” must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect. “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.
- Although the Act does not define “exceptional case”, it provides guidance as to what the Tribunal must take into account in deciding whether a case is exceptional. Section 226(2) requires the Tribunal to consider a number of matters, including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment.
- In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the Tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.
- The Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences, that an exceptional case does not exist when setting aside the decision.
- Neither party bears the onus of proof as to whether an exceptional case exists.
- Mr Misfud was born in a regional Queensland town in 1997 and is now 19 years old. He attended primary and secondary school in his birth place, completing grade 12 in 2015.
- Mr Misfud completed a Certificate in Outdoor Recreation during grades 11 and 12. He had obtained a blue card for that course.
- Mr Mifsud said he began smoking cannabis in grade 10 when he stopped socialising with one group at school and took up with another. He said the new group were regular users of cannabis so he took up the practice being part of the group. He said it was not a case of being pressured to do so and he took “100 percent responsibility” for his decision. He said the group he had fallen out with used heavier drugs than cannabis. His evidence was that he had never himself used any illegal substances other than cannabis.
- Mr Misfud lived at home with his parents throughout his schooling but when he was charged with possession of a dangerous drug they asked him to leave and he then lived with his girlfriend at her parents’ home.
- Around the same time as he was charged, Mr Misfud was sacked from his job at a hardware store. He said he was wrongly accused of being on the computer during work time.
- Mr Mifsud was convicted on 18 November 2015 of the offence of possessing a dangerous drug on 30 October 2015. He was fined $600 with no conviction recorded. He was at the end of grade 12 and aged 18 at the time.
- Mr Mifsud agreed with the facts as set out in the police brief. Mr Mifsud was found in possession of a clipseal bag of cannabis weighing 115g. He told police he had paid $1200 for the bag which was for his own personal use. He agreed that although he told police in a record of interview that this amount would last him about a month, at the hearing he said that he had said a month “on the spur of the moment” and really that amount would have lasted him a period of about three months. He said he had smoked cannabis mainly on weekends but occasionally on a week day. He said he would have smoked 2-3 times a week. He smoked with his friends either in his own home or their homes. He said over the period he used cannabis, the quantity he smoked at a time or over a week did not really vary, but he went from buying little quantities at a time, to larger quantities.
- Mr Misfud said at the time he was charged he had been earning between $400-$600 a week in casual employment. He agreed that he had spent around $100 a week on cannabis which he agreed was a large proportion of his wages and showed that he prioritised his use of the drug.
- Mr Mifsud was unable to identify any “triggers” to his use of cannabis and characterised it as a result of being part of a social group, the members of which widely used cannabis. He did not consider he was particularly stressed at the time he commenced using the drug. He found himself struggling at school whereas in earlier years he had enjoyed school and he said he found that stressful but did not consider that was a factor in his use of cannabis. He said he continued to try hard at school and did not experience psychological effects from his drug use although he said he “wasn’t doing much at the time.”
- Mr Mifsud’s evidence was that he did not cease using cannabis after being charged and convicted but only after he received notice that his blue card would be cancelled, which was several months after his conviction. When asked how he afforded to continue his drug use given his fine and that he became unemployed, Mr Misfud said the drug was freely available within his social group.
- As a result of his blue card being cancelled, Mr Misfud was unable to pursue studies in social work and counselling. He said he thought obtaining qualifications in those areas would provide him with the opportunity to help young people to avoid making the same mistakes he had made.
- Mr Misfud said he had not sought help to cease use of cannabis, he simply decided to stop using it. He said his girlfriend, with whom he had been in a relationship for three years, was against the use of drugs and very supportive of his decision. He said he had told his friends that he was stopping and even though they themselves used cannabis, they welcomed someone wanting to stop and did not pressure him to use. He continues to see these friends once or twice a week. He agreed that he had been tempted to use the drug with his friends but knowing what he wants from life and that he will require qualifications which necessitate his having a blue card, is sufficient to stop him using. He said he also thinks about how his parents and girlfriend would react if he were to resume use. He said he is working in permanent part-time employment and saving money rather than wasting it which is also a positive of not using drugs. He said he has never been a smoker and drinks alcohol only on social occasions around once a month. He said he does not find the need to use alcohol or cannabis in order to socialise.
- Mr Misfud said it might seem like a good idea at the time to use cannabis but it was not worth it. He said he would be happy for a friend to cease use but thought there was no point in telling his friends what to do. He said it was wrong for someone affected by any substance, including alcohol, to be around children. He said the use of illegal drugs made the community unsafe in a number of respects such as the nature of the people involved in drugs distribution, that drug use puts people at risk in operating motor vehicles and the safety issues around children.
Submissions of Blue Card Services
- The Department identified a number of protective factors relevant to Mr Mifsud as follows:
- He expressed remorse for his offending.
- He reported he is no longer using cannabis and that he was aware of the impact on himself of his cannabis use as well as showing some understanding of the impacts on the broader community, suggesting he had some insight into his offending.
- He was eighteen at the time of his offending suggesting his offending could be a case of “youthful misadventure”.
- He wished to pursue study in social work and counselling showing a concern for the welfare of others.
- He stated his awareness that a blue card is a privilege.
- Mr Misfud has a support network comprised of his parents, his girlfriend and her family and his social group. He described his three year relationship with his girlfriend as supportive. While it was concerning that Mr Misfud still socialises with a friendship group, the majority of whom use cannabis regularly, he said they support his decision to abstain and he felt no pressure to relapse.
- Mr Misfud experienced a period of unemployment after his conviction but resumed work which progressed from casual to part-time.
- Mr Misfud gave evidence about his understanding of the impact of drug use on children as well as the wider community indicating some insight.
- The Department submitted that whilst there were protective factors there were a number of risk factors arising from the evidence.
- Mr Misfud told police he had bought the cannabis for personal use over a period of one month. At the hearing, Mr Misfud gave evidence that what he told police was incorrect and made in a state of panic. He accepted that quantity used over three months still involves frequent use of at least once a week or more and involved an expenditure of $100 a week which is a significant proportion of the $400-$600 a week he was earning from casual employment.
- Regular intoxication is likely to make Mr Misfud unable to prioritise the needs of children for whom he may have responsibility.
- This was not an isolated episode of possession and his use was ongoing.
- Given Mr Misfud’s limited earning capacity, he placed a high priority on his drug use suggesting a danger of developing a dependence on cannabis.
- Mr Misfud gave evidence that he did not cease to use cannabis after his conviction for possession but only after he received notice of the cancellation of his blue card around May 2016. His ability to maintain a drug-free lifestyle on a long-term basis has not been tested.
- Mr Misfud’s reference to his offending as “one mistake” suggested a lack of insight into the seriousness of his drug use and offending which may increase the likelihood that he will relapse into drug use.
- Mr Misfud’s failure to make submissions in support of his retention of his blue card casts doubt on his statements that he considers his blue card a privilege.
- The Department submitted that Mr Misfud was frank in giving evidence about his past conduct and his continued engagement with the social group where offending started. However, Mr Misfud provided that evidence and there was no evidence from his support group so that the Tribunal could be more confident about the steps taken by him to ensure he does not reoffend.
- The Department submitted that the transferability of a blue card is a factor to be considered.
- The Department submitted that the fact Mr Misfud only required a blue card for him to continue his studies was irrelevant.
- The Department submitted the risk factors outweigh the protective factors such that such that this is an exceptional case in which it would not be in the interests of children for Mr Misfud to be issued with a blue card.
Mr Misfud’s Submissions
- Mr Mifsud said he had an adequate support network to continue distancing himself from use of cannabis. His future goals act as a control to stop his reoffending. While he conceded it has been a short time, he was confident he will not resume use because of the repercussions he has experienced making it easy to refrain from using illegal substances. He said the fact he works part-time and leads a more productive lifestyle enables him to distance himself from his previous environment. The fact he can still socialise with friends who use cannabis verifies that he is happy with his decision to no longer use.
- I accept the submissions of the Department as to the protective and risk factors applicable to Mr Misfud.
- My greatest concern with Mr Misfud’s application was the lack of corroborating evidence from his support network. It was of concern also that he had not sought any professional help with addressing his use of cannabis, particularly when the evidence is that he was a regular user over a period of around two years.
- Mr Misfud presented as a very honest witness. His admissions that he did not cease using cannabis after his conviction and that he still associates with the same group of friends is not supportive of his application and appear to be frank responses to questions. Mr Misfud’s explanation as to his failure to seek the support of witnesses, including his parents and girlfriend was that he had brought the situation upon himself through poor choices and sought to redress the situation on his own. In my view that was a risky decision and I would have preferred to hear from witnesses to corroborate the evidence of Mr Misfud.
- However, I accept Mr Misfud’s evidence that he ceased use of cannabis and is strongly motivated to not reoffend. Although at the time of hearing Mr Misfud’s evidence was that he had ceased use for a period of around ten months only, I accept his assertion of a strong desire to avoid the disapproval of his parents and girlfriend.
- That Mr Misfud needs a blue card to undertake studies which will may qualify him to assist others to avoid mistakes is irrelevant, however, Mr Misfud’s stated ambition to continue that pathway and avoid the future loss of his blue card, is protective of him not reoffending.
- I find the risk factors do not outweigh the positive factors and I am satisfied this is not an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, the decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of section 221(2) of the Act is set aside.
- The decision of the Director-General, department of Justice and Attorney-General made 16 May 2016 that the applicant’s case is “exceptional” within the meaning of section 221(2) of the Act is set aside and replaced with the Tribunal’s decision that there is not an exceptional case.
Amended due to typographical error.
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2).
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167.
Ibid, s 221.
Commissioner for Children and Young People and Child Guardian v FCG  QCATA 291, .
Commissioner for Children and Young People and Child Guardian v Maher  QCA 492, .
Ibid, citing as authority the test in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28.
Chief Executive Officer, Department for Child Protection v Scott (No 2)  WASCA 171.
Grindrod v Chief Executive Officer, Department for Community Development  WASAT 289.
Criminal History Information detailed in Statement of Reasons, 6-10.
Chief Executive Officer, Public Safety Business Agency v Hamilton  QCATA 106.
- Published Case Name:
Brock James Mifsud v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
Brock James Mifsud v Director-General, Department of Justice and Attorney-General
 QCAT 279
24 Jul 2017