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Beasley v Director-General, Department of Justice and Attorney-General

 

[2017] QCAT 316

CITATION:

Beasley v Director-General, Department of Justice and Attorney-General [2017] QCAT 316

PARTIES:

Damien Beasley

(Applicant)

 

v

 

Director-General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML303-16

MATTER TYPE:

Children’s matters

HEARING DATE:

25 August 2017

HEARD AT:

Toowoomba

DECISION OF:

Member Murray

DELIVERED ON:

15 September 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. 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 Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – general administrative review – Blue Card – where the applicant has a criminal history– where all offences are defined by the Act as not serious or disqualifying – where the respondent issued a negative notice to the applicant – where the applicant sought a merits review – where the applicant has a long history of mental health issues that are ongoing – where the applicant’s case is exceptional.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(3), s 20(1), s20(2), S24(1), s63
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 167,
s 221(2), s 226(iii), s226(iv), s226(2)(e), s353,
s 360

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

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

APPEARANCES:

 

APPLICANT:

Mr Beasley appeared in person and was unrepresented

RESPONDENT:

Mr I McCowie, Government Legal Officer for the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    The applicant, Mr Beasley applied to the respondent for a Blue Card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act).
  2. [2]
    On 6 December 2016, the respondent decided to issue a negative notice under the WWC Act. The applicant requests this tribunal to review that decision.
  3. [3]
    Mr Beasley requires a Blue Card to complete his Nursing Diploma at TAFE to undertake practical experience placements.  Mr Beasley told the tribunal this has been his lifelong goal to work in health services and to help others. 

Criminal history

  1. [4]
    Mr Beasley has a criminal history from 1997 to 2016. There are periods of no recorded offending between 1999 and 2001; 2003 and 2006; 2008 and 2013. The most recent offences occurred in December 2015. Most of the offences occurred on the back drop of drug addiction and mental health concerns of anxiety and depression. They are offences of – stealing, possession of utensils or pipes, breach of bail conditions, contravention of apprehended domestic violence order, common assault, public nuisance, obtaining a financial advantage, failing to properly dispose of a needle and syringe, possession of tainted property, possession of weapon and possession of dangerous drugs.
  2. [5]
    These offences are not ‘serious offences’ and resulted in convictions recorded, no convictions recorded with fines, probation or community services imposed.
  3. [6]
    The two common assault offences occurred in October and November of 2002 in New South Wales concerning a former girlfriend and another woman. There was a contravention of a domestic violence order in November 2002. He was fined for these offences.
  4. [7]
    In September 2014 in Toowoomba, Mr Beasley was convicted with six months’ imprisonment released on his own recognisance for obtaining a financial advantage (Centrelink benefits).
  5. [8]
    In December 2014 in Toowoomba, Mr Beasley received a fine with no conviction recorded for failing to properly dispose of a needle and syringe.
  6. [9]
    In January 2016 in Toowoomba, Mr Beasley was fined with no conviction recorded on possession of a dangerous drug (cannabis) and unlawful possession of a weapon (an air rifle).

The evidence

  1. [10]
    Mr Beasley gave oral evidence and provided written character references from four people and two hand written notes from his General Practitioner. Mr Beasley had hoped his supporters would attend the hearing in person and was very disheartened that only one witness attended the hearing.  He took this to mean they had deserted him in his time of need.
  2. [11]
    He said he was a bit of a recluse, sticks to himself and does not have a wide circle of friends or know professionals he could call upon to speak for him and he was uncomfortable to ask this of them. After some encouragement Mr Beasley agreed for his supporters being contacted by the tribunal to provide evidence by telephone.
  3. [12]
    Unfortunately, his GP, Dr Simpson was not able to give evidence as he had patients scheduled all day and no time for a lunch break.
  4. [13]
    Mr Jon Crisp from Mental Illness Fellowship of Queensland Employment Personal Helpers and Mentors’ Service (MIFQ) was away from work with the flu and not answering his mobile phone.

Ms Annette Rose  on-site manager of Toowoomba Supported Accommodation

  1. [14]
    Ms Rose provided a written reference for Mr Beasley and gave evidence in person at the hearing.  She said she has known Mr Beasley for about two and a half years. He was a resident for two years at the boarding house which Ms Rose manages. He moved out about seven months ago.
  2. [15]
    The boarding house receives referrals for accommodation from hospitals, community organisations and self-referral. It is a level 2 service that provides an evening meal and support. Staff do not oversee medication provision.
  3. [16]
    Ms Rose had no hesitation in providing evidence in support of Mr Beasley.  She said he was a good resident and a good person. She said he always paid his rent on time. He got along well with all of the residents and he was particularly empathetic and caring of the most vulnerable residents. She said he was kind and looked out for those with brain injuries, mental illness and protective of the young people. They have a very young resident who has an intellectual disability and Mr Beasley is like a big brother to him. 
  4. [17]
    She saw no evidence of him using drugs during that time, he would have the occasional beer and she didn’t see him intoxicated.
  5. [18]
    She said Mr Beasley was a loner and never reliant on staff, he made decisions for himself and he was independent.
  6. [19]
    Ms Rose said Mr Beasley isolates himself and doesn’t have a wide network of support. She knows he sees his GP. She said he has had employment support from MIFQ and will be in touch with Jon Crisp if he needs it.
  7. [20]
    Mr Beasley’s best friend, John still lives at the boarding house, he returns to visit John regularly and Ms Rose catches up with him.
  8. [21]
    While living at the boarding house Mr Beasley was enrolled in TAFE studying a nursing diploma. Ms Rose said he was very committed to his studies and this was his focus. He would study in his room and attend TAFE. 
  9. [22]
    Ms Rose has observed Mr Beasley to be developing insight into his life, his mental illness and coping mechanisms. She said he was absolutely devastated when he received a negative notice from Blue Card Services as this prevents him from completing his course. He feels hopeless and helpless. She was impressed that he reached out to her for help and she told him to “get back up, fight back, get information and ask for a review”. She read the Reasons but she already knew of his past and his criminal history.
  10. [23]
    Ms Rose is impressed by how Mr Beasley is dealing with his disappointment better than he has in the past and he is reaching out to MIFQ to talk when he needs it. She said “if Damien has hope, he will work towards his goal”.

Mr John Spence

  1. [24]
    Mr John Spence is Mr Beasley’s best friend. They have known each other since the first day of school. He provided a reference for him and gave evidence by telephone at the hearing.
  2. [25]
    Mr Spence said he and Mr Beasley have always looked out for one another. At one point during high school Mr Spence stayed with Mr Beasley’s family. They lived together in 2014 to 2015 and for a time in 2016.
  3. [26]
    Mr Spence is a diabetic and dependent on insulin. He found this difficult at first and Mr Beasley helped him to cope with it and get it under control. Mr Spence suffers from depression, he is isolated and said he mostly stays in his room, watches TV, colours in and focusses on keeping himself well and safe. He said Mr Beasley has been a great support to him. He visits him once or twice a fortnight and encourages him to go for a walk and get him out of his room. They talk very openly together and support each other.
  4. [27]
    Mr Spence has not seen Mr Beasley use drugs and believes he gave this up years ago. He believes Mr Beasley is coping with life and the recent disappointment of not getting a blue card. He said being a paramedic has been Mr Beasley’s dream and he is very impressed at the way Mr Beasley has taken to study and is very committed to this goal. 
  5. [28]
    Mr Spence said it is hard to explain Mr Beasley’s strengths by phone. “It is a willingness to help people around him, he’ll go the extra mile and ask a stranger if they are ok”. He said Mr Beasley is great with the elderly and is kind to people who need some help. He has never seen him act inappropriately or harshly towards children and young people. He is aware that Mr Beasley has cared for his nieces and nephews in the past as well as the grandchildren of a close friend.

Mr Csaba Bako

  1. [29]
    Mr Bako provided a reference for Mr Beasley and gave evidence at the hearing by telephone.
  2. [30]
    Mr Bako and Mr Beasley have been friends since year eight, they see each other about once a fortnight. He said he knows of Mr Beasley’s criminal history and his problems with drugs. As far as he knows, Mr Beasley hasn’t used drugs for years. Mr Bako has seen positive changes in Mr Beasley’s life; he is no longer associating with criminals or drug users. He saw a big change in him when he was at TAFE. He said Mr Beasley really enjoyed studying and “took to it really well”.  
  3. [31]
    Mr Bako said Mr Beasley is very loyal and looks after his friends. He knows that Mr Beasley likes to help out at the Club House; a support venue. He said he saw his GP, the MIFQ workers or he has admitted himself to hospital when he really needed help with his anxiety and depression.
  4. [32]
    Mr Bako said he has seen Mr Beasley with his former partner’s children when Mr Beasley used to look after them. He said he was appropriate and caring towards them.
  5. [33]
    Mr Bako said Mr Beasley “behaves differently with different people”. He explained he may have a dark sense of humour with his mates or he might swear with them but he would never be like this around children. He said Mr Beasley knows how to behave with women, the elderly or children.

Letters from Dr David Simpson - Mr Beasley’s GP

  1. [34]
    Dr Simpson handwrote a letter dated 19 April 2017 stating Mr Beasley has been his patient for seven years. He experiences depression and PTSD since witnessing a death in 2004. He stated Mr Beasley is currently well apart from panic attacks for which he takes Valium twice weekly. He considered Mr Beasley to be physically and psychologically fit to associate with children.
  2. [35]
    Mr Beasley told the tribunal he went to see Dr Simpson on 22 August 2017 to ask him to write a report to the tribunal.[1]
  3. [36]
    Dr Simpson handwrote a letter dated 22 August 2017 stating that he examined Mr Beasley on that day and he showed no underlying depression but is extremely anxious about his nursing degree and blue card. Dr Simpson stated he felt Mr Beasley is capable of good decision making and is able to look after all his affairs adequately.

Mr Jon Crisp – support worker at MIFQ

  1. [37]
    Mr Crisp stated in his reference dated 21 April 2017 for Mr Beasley has participated in the Employment and Mentors service since October 2015. He stated that Mr Beasley appears to have come a long way since his previous criminal conviction and he suggests Mr Beasley has matured to understand that there are certain social protocols that he needs to adhere to enable him to move forward with his life.

The evidence of Mr Beasley

  1. [38]
    Mr Beasley said he is currently living in a boarding house that has 14 rooms, a large shared bathroom and kitchen where each resident is able to cook meals. He said he gets along fine with all of the tenants. He left the previous boarding house as it was more expensive with an evening meal provided and it was supported accommodation. He said he doesn’t need that any more. 
  2. [39]
    The previous boarding house was in close proximity to TAFE and he found it heartbreaking to walk past it every day knowing he could not attend his nursing course without a blue card.
  3. [40]
    Mr Beasley provided an overview of his life and how he came to be in his present circumstances.
  4. [41]
    Mr Beasley said he grew up in a loving family environment in Toowoomba but always struggled with depression. He left school at the beginning of grade 12 as his adolescent years brought increased anxiety to the point that he sought drugs to self-comfort.
  5. [42]
    His drug use increased and so did his depression. For the following three to four years Mr Beasley became dependent on heroin.  Mr Beasley described that his life spiralled out of control.  He was in a dysfunctional relationship, during the years 1999 – 2003 and they moved around fruit picking. At one time living with his partner’s family, at other times they lived in caravan parks and at other periods they were homeless. It was an abusive relationship fuelled by drugs. He said they were heroin addicts.
  6. [43]
    Eventually they went their separate ways and Mr Beasley moved to Tasmania for a fresh start. He enrolled in a psychology degree but at the end of his first semester he witnessed the murder of a girlfriend who died in horrific circumstances in 2004. This led to Mr Beasley’s first admission to a psychiatric hospital. He was subsequently diagnosed with Post Traumatic Stress Disorder (PTSD) while still suffering from anxiety and depression.
  7. [44]
    Mr Beasley lived for about twelve months post-hospital in a Salvation Army drug rehabilitation program. He said this gave him the tools to stop using drugs for some years.
  8. [45]
    Mr Beasley moved to Mackay and worked there for a while and then moved back to Toowoomba. His father and brother and his brother’s family live in Toowoomba although he is estranged from them, particularly his father. He has a brother who lives on the Gold Coast and has no contact with him.
  9. [46]
    Mr Beasley has worked in the past as a nursing assistant and volunteered in health services. He said he really enjoyed this and it was a turning point in his life when he realised this is what he wanted to do.  He commenced a Bachelor of Nursing about three or four years ago at the University of Southern Queensland. He said it went very well but due to a bad relationship he was in, his anxiety increased and his “life fell apart again”. He was admitted into a psychiatric unit. He deferred his University studies.
  10. [47]
    Mr Beasley was not clear on dates and times he said he can’t remember some aspects of his life.
  11. [48]
    Two years after discharge he enrolled into TAFE to commence a nursing diploma. He said he wanted to ease back into study. He said he was surprised how well he went, he was passing all of his exams and assessments. 
  12. [49]
    Mr Beasley said he held a blue card in the past, he can’t recall why he required it. The blue card expired and he didn’t seek a renewal
  13. [50]
    Mr Beasley said he needs a blue card for his student placements. Since receiving the negative notice he said he has lost a lot of self-esteem, his “pride has been stripped away and he is a shadow of the person he was before this”.
  14. [51]
    Mr Beasley said finding education was a turning point in his life.  He excelled at this. He said he realised the way to a better life for him was education and a career as a health worker. It gave him hope, goals and a determination to succeed. Mr Beasley said this was the first time in his life he considered himself worthwhile, his mother was proud of him and he felt pride in himself. He said he never gave a thought to his future.

What Mr Beasley said about his past offending

  1. [52]
    Mr Beasley said he totally understood why Blue Card Services gave him a negative notice based on his past. However, he said, this is not the person he is today. He said he took full responsibility for his actions and behaviour. He said you have to walk in the shoes of a heroin addict to understand what it is like to live this life. He said he hasn’t used heroin for 15 years. He said it is a “sleeping monkey on his back” it could be awakened at any time and he lives mindfully every day about staying away from drugs. He said he doesn’t want them in his life and doesn’t associate with people who use drugs.
  2. [53]
    Mr Beasley said “he actually died” a couple of times from drug overdoses and this made him stop taking drugs. He said he was ashamed of his drug history. He said drug rehabilitation in 2005 in Hobart was helpful and he doesn’t need anything further.
  3. [54]
    Mr Beasley said he uses mindfulness as a strategy for not using drugs. He is mindful to change the way he related or thought about drugs. He likes to be on his own, he tends to isolate himself or talk to his best friend, John Spence about his worries. He said throwing himself into his studies was helpful.
  4. [55]
    He said he doesn’t find it helpful “sitting around with a bunch of drug addicts talking about drugs and the past” it makes him feel worse. “This treatment is not for me”. Mr Beasley said he knows when to seek medical treatment for his anxiety and depression through his GP or the hospital. He said he has had a few hospital admissions for his mental health over the years. He said he would reach out to people at the Club House or at MIFQ but he hasn’t really needed to do this.
  5. [56]
    Mr Beasley said he knows the cause of his drug taking which led to his offending and it was centred on a couple of very dysfunctional relationships where he and his partners used drugs and were mostly homeless. He said he is not blaming those people for his behaviour. He said he regrets this.
  6. [57]
    He regrets assaulting his former partner and he apologised to her in recent years for his behaviour and actions. He said he is appalled by domestic violence, “no one has the right to damage a woman, or a man for that matter, physically or emotionally”.
  7. [58]
    He said his criminal history ceased with his drug fuelled dysfunctional relationships.
  8. [59]
    Mr Beasley said he last used Amphetamines in 2016, it was a brief relapse when his mother died. They were very close and he was devastated by her loss. He took amphetamines at this time and recognised he could spiral out of control and needed to get help. He admitted himself into Toowoomba Hospital. Before this, he last used amphetamines in 2013.
  9. [60]
    Mr Beasley said he accumulated the Centrelink debt of $10,000 over four years. He was receiving a Disability Support Pension for his depression and PTSD. He was doing some shift work with a different pay each week. He said it wasn’t a lot of money but he was very depressed about his relationship at the time and wasn’t able to keep proper track of his earnings.  He said he did not intentionally lie to Centrelink and the small amounts built up over four years.
  10. [61]
    He has entered into an arrangement with Centrelink in about 2015 and is currently repaying the debt. The Public Trustee was put in place in March 2016 and is making direct payments to Centrelink and he said this is very helpful.
  11. [62]
    Mr Beasley explained that in 2014 he was sharing a unit with a school friend. A guest of his friend visited the unit and asked Mr Beasley if he had a sterile needle and syringe to use for injecting drugs. He said even though he was no longer an intravenous drug-user he still had sterile syringes and he provided one to the guest. The guest opened the syringe packaging but changed his mind about using it and handed it back to Mr Beasley. Mr Beasley said he stored it in a glasses case for safe keeping. Police officers came to the unit the following day to conduct a search and found the needle and syringe which was not properly disposed of and consequently changed Mr Beasley with this offence.
  12. [63]
    Mr Beasley spoke of the possession of the air rifle and possession of a dangerous drug in December 2015. He said his friend was sentenced to a term in jail and asked Mr Beasley to stay in his house to look after his pets. He said his friend was a hoarder and the house was extremely cluttered and untidy. A friend visited the house one day and brought a bag of marijuana with him and offered it to Mr Beasley. Mr Beasley told him he no longer used drugs. His friend left the marijuana in the house and he forgot about it and couldn’t see it amongst all of the clutter of the house.  
  13. [64]
    Mr Beasley and this friend visited another house together. When they arrived all of the adults were very drug affected. There were small children in the house unsupervised. Mr Beasley saw an air rifle leaning against a wall in full sight of and access for the children. He tried to arouse an adult to remove it but they were semi-conscious. Mr Beasley said he left the house and took the rifle with him for safe keeping as he was concerned for the safety of the children. He said he intended to return it to the house at some point.
  14. [65]
    Police officers attended the house which Mr Beasley was minding. They were searching for another person they believed to be at the house. They found the bag of marijuana and the air rifle. Mr Beasley had bought ‘slugs’ for the gun and was shooting it at targets in the back yard prior to the arrival of the police officers. He said he did not tell the officers who owned the marijuana or the circumstances surrounding the air rifle being in his possession. Although he was worried about the safety of the children around the weapon, he did not tell the police the situation in which the children were living, as “he didn’t want it to come back on him”.
  15. [66]
    In summary, Mr Beasley told the tribunal he has turned his life around. He is no longer the person described in his criminal history. He is ashamed of his drug taking and past behaviour. He said he has “dragged himself out of the gutter”. He no longer associates with drug users and criminals. He has proven to himself and others that he can make something of his life through his studies, abstention from drugs and the way that he now lives his life.
  16. [67]
    It is his lifelong passion and goal to become a health worker. Mr Beasley said this is a very big change in his life. He keeps to himself and doesn’t believe he needs any courses or support to stay away from drugs and deal with his anxiety and PTSD. If he needed help he would talk to his doctor, his friends, people at MIFQ or the Club House.

The respondent’s concerns and submissions and medical material

  1. [68]
    The respondent’s concerns documented in the Reasons and in written submissions are that Mr Beasley has convictions for drug offences, anti-social behaviour, violence and a relatively recent conviction for a weapons offence. This history is on the backdrop of his long running drug addiction and associated mental health issues.
  2. [69]
    The respondent considers this offending history demonstrates Mr Beasley may not respond appropriately to conflict or disagreement and that Mr Beasley may not be able to act protectively to children in his care.
  3. [70]
    The respondent considers Mr Beasley’s long-term drug addiction and his recent drug use suggest he may be likely to return to drug use in the future.
  4. [71]
    The respondent requested medical records under a Notice to Produce.[2] These were provided by the Darling Downs Hospital and Health Services and consist of discharge summaries for admissions to the Acute Mental Health Unit of Toowoomba Hospital, details of mental health diagnosis and details of prescriptions in relation to mental health issues concerning Mr Beasley.
  5. [72]
    In the Consumer Care Review Summary and Plan from the Adult and Child Mental Health Team (‘the Summary and Plan’) (pages 1 - 9; 17 November 2014),[3] it is documented there was still significant abuse of amphetamines and cannabis use with chronic suicide ideation. Mr Beasley’s insight is documented as “reasonable in the sense that he is able to identify the need to take medication to stay well but continues to take illicit substances”.
  6. [73]
    The Summary and Plan (pages 1 - 9; 25 June 2015) states that Mr Beasley was admitted to the Mental Health Unit with a primary diagnosis of a moderate depressive episode and a secondary diagnosis of mental and behavioural disorders due to multiple drug use of psychoactive substances. It was recorded that Mr Beasley was moving frequently, couch surfing with ongoing amphetamine, Valium, alcohol and tobacco use. The treating team was concerned about suicide ideation, coping with trauma and a requirement that he complete 140 hours of community service.
  7. [74]
    Blue Card Services is concerned that Mr Beasley’s history of drug use may return if there is another life event that destabilises him, which was the situation in January 2016.
  8. [75]
    It is recorded that Mr Beasley was admitted to the Toowoomba Hospital from 18 to 21 January 2016 following several days of non-compliance with medication and increased amphetamine use. He reported to doctors an increase in suicidal ideation and social stressors. This followed the death of his mother. The Discharge Summary dated 21 January 2016 states Mr Beasley continues to use substances including IV speed.
  9. [76]
    The Review Notes state Mr Beasley ceased all of his medications in March 2016 due to lack of funds to fill prescriptions. He did not attend outpatient appointments with a consultant in April 2016 and he stated he did not wish to recommence on medication. 
  10. [77]
    On 21 March 2016, QCAT appointed the Public Trustee as financial administrator. The respondent considers that this appointment indicates Mr Beasley’s judgement is impaired and he does not have the capacity to manage his finances and this may indicate a risk that he may not be able to exercise judgment in relation to children in his care.
  11. [78]
    The Summary and Plan dated 25 June 2016 records considerable stresses in Mr Beasley’s life, concerns about suicide ideation and distress over the breakdown in his relationship and considerable dynamic factors and vulnerability of self-neglect recorded.

The tribunal conducts a merits review

  1. [79]
    The tribunal must hear and decide a review of a decision by way of a fresh hearing on the merits.[4] The purpose of the review is to reconsider the application and produce the correct and preferable decision.[5]
  2. [80]
    The tribunal has all the functions of the decision-maker for the reviewable decision.[6] The tribunal conducts the review within the same legislative framework as the primary decision-maker and has the power to confirm or amend the decision, set aside the decision (and substitute its own decision) or set aside the decision (and return the matter for reconsideration to the decision-maker).[7]
  3. [81]
    In conducting the review, the tribunal does so by administering the principles contained in the WWC Act. It is to be administered under the following principles:
    1. The welfare and best interests of a child are paramount.
    2. Every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.[8]
  4. [82]
    The tribunal must have regard to this principle in the context of reviewing child-related employment decisions.[9]

The legal test

  1. [83]
    The screening of persons in employment or carrying on particular businesses is required to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[10] A Blue Card authorises a person to work with children in any environment, whether supervised or not.
  2. [84]
    Often in cases, the tribunal must decide where the applicant is the subject of criminal convictions.
  3. [85]
    The WWC Act provides that some offences are ‘serious offences’,[11] leaving others to be described as ‘offences other than serious offences’. The categorisation of an offence is important, because it determines a default position.
  4. [86]
    In this case, the applicant has criminal convictions not for ‘serious offences’. Therefore a positive notice must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[12]
  5. [87]
    The decision under review is whether the applicant’s case is an ‘exceptional case’.[13]
  6. [88]
    The tribunal is informed by the decision of Philippides J in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492, where risk and protective factors were balanced in deciding whether an exceptional case existed.[14]

What protective factors exist in this case?

  1. [89]
    Mr Beasley has expressed regret and shame for his previous offending.
  2. [90]
    He has self-disclosed his long-term drug taking and its significant effects on him and expressed a desire to stay away from drugs in the future.
  3. [91]
    A risk identified further on, is that Mr Beasley may turn to drugs in the future if another significant event occurred in his life. However, in fairness to Mr Beasley, he said the disappointment of receiving a negative notice was very significant to him. There is no evidence that he turned to drugs at this time, which he has done in the past, rather he sought help from Ms Rose and his support network.
  4. [92]
    Mr Beasley sought assistance from the Toowoomba Hospital when he needed help with his mental health concerns.
  5. [93]
    Mr Beasley has made changes in his life. His accommodation in the two boarding houses have remained stable for about two and a half years. Prior to this he was moving frequently, was homeless or couch surfing.
  6. [94]
    Mr Beasley is committed to his studies. He is focussed on completing a qualification in health services. He said discovering education was a positive turning point in his life and it improved his mental health.
  7. [95]
    From all accounts from his witnesses, Mr Beasley is an empathetic and caring man who has made a lot of progress in his life. He sees the benefits and importance in helping vulnerable people.  He expressed every intention to continue to study and to work in the health industry and help others.

What risk factors exist in this case?

  1. [96]
    Mr Beasley’s criminal history spans 19 years, although there are years where he has not committed offences. It has been 19 months since Mr Beasley’s last offences and these were possession of a weapon and cannabis.
  2. [97]
    Medical records indicate his IV drug use remained a concern in January 2016 and confirmed his amphetamine use at this time. It has not been a long period of time since abstaining from drugs for Mr Beasley to demonstrate coping mechanisms if another significant event occurred in his life.
  3. [98]
    Mr Beasley required treatment for his mental health in 2014 at the breakdown of a relationship. Medical records of 25 June 2016 records considerable stresses over the breakdown in another relationship and vulnerability of self-neglect. Mr Beasley may still lack coping strategies to respond to difficult circumstances, disagreement and grief.
  4. [99]
    It would seem Mr Beasley’s judgement is limited.  He ceased medication in February to March 2016 when he could not afford to fill prescriptions. He then told doctors he had no intention of recommencing the medication as he considered he didn’t need it.  This was contrary to the doctor’s view.
  5. [100]
    QCAT appointed the Public Trustee of Queensland to act as Mr Beasley’s Administrator in financial matters in March 2016. This is to assist Mr Beasley to pay off his Centrelink debt and ensure he can afford to fill prescriptions when necessary. Whilst this is a protective factor for Mr Beasley it indicates a risk in that Mr Beasley does not have capacity to exercise judgement of his financial affairs. This could cloud his judgement in relation to children in his care.
  6. [101]
    There is no independent health or psychological assessment provided to the tribunal to verify Mr Beasley’s assertions about his abstinence from drugs, his current mental state or to his suitability for child related employment.

Discussion of the evidence and is this an exceptional case?

  1. [102]
    The WWC Act does not define what constitutes an ‘exceptional case’; it is a matter of discretion. Courts and tribunals have been reluctant to establish any general rules with respect to what is ‘exceptional’ but have considered it in the context of other legislation and case law.[15] Each case is determined on its merits and the tribunal should not take a prescriptive approach.[16]
  2. [103]
    The tribunal must have regard to the considerations and factors prescribed by s 226 of the WWC Act in determining whether an exceptional case exists, based on Mr Beasley’s criminal history and other associated matters.
  3. [104]
    These factors are not exhaustive and will not necessarily be given equal weight in the evaluative exercise to be undertaken. What weight is accorded to each factor will depend upon the facts and circumstances of the particular case.
  4. [105]
    Mr Beasley has not been charged with or convicted of a ‘serious offence’. There is no legislative guarantee that a person charged with an offence other than a serious offence will be given a blue card.
  5. [106]
    The chief executive must have regard to when the offences were committed.[17]
  6. [107]
    Most of Mr Beasley’s offences were committed between 1996 to 2002. These were the years that he said he was addicted to heroin. There were offences in 2014 concerning failure to dispose of a needle and syringe and obtaining financial advantage through Centrelink. 
  7. [108]
    The offences finalised in January 2016 concerned possession of a weapon and cannabis.
  8. [109]
    These are relatively recent offences. They raise concern about Mr Beasley’s insight and judgement, which are important considerations in the employment, or carrying on a business that involves or may involve children.[18] Cannabis use is also well known to have adverse effects on people with mental illnesses.
  9. [110]
    Mr Beasley has suffered from long-term drug use. Medical records show hospital admissions in 2014 to 2016 where drugs were a factor as a result of considerable stresses in Mr Beasley’s life.
  10. [111]
    Medical records and police material show that Mr Beasley was an IV drug user in 2014 and amphetamine use occurred intermittently in 2013 to 2016.
  11. [112]
    Mr Beasley’s mental health history is relevant [19] and its impact on his insight and capacity to make appropriate judgements in child related employment.
  12. [113]
    Mr Beasley has suffered from long-term mental health issues including PTSD, anxiety and depression from at least 2002 until the present time. Medical notes up to June 2016 show that these concerns are still apparent.
  13. [114]
    Difficult life events have had an impact on Mr Beasley’s drug use, including the breakdown in relationships, grief and disappointment, which have also affected Mr Beasley’s mental health. In 2014, he lost interest in his studies due to a dysfunctional relationship which he says contributed to his accumulation of a Centrelink debt of $10,000. 
  14. [115]
    The tragic loss of his mother greatly affected him to the point that he returned, albeit briefly, to amphetamines in January 2016. He was readmitted to hospital as a result.
  15. [116]
    The current event of Mr Beasley receiving a negative notice has been a significant disappointment to him. To his credit, there is no evidence to the tribunal that suggests he has returned to drugs as a result; rather, he has sought support and assistance from friends.
  16. [117]
    The Public Trustee has been appointed as Administrator for his financial affairs. Although this is a protective factor for Mr Beasley, it indicates a risk in judgment in that he may not be able to exercise appropriate judgement in relation to children in his care.
  17. [118]
    It is acknowledged that Mr Beasley has made a lot of progress in dealing with stressors in his life and being determined to make changes in his life.  He should be commended on his commitment and determination to complete his studies and to contribute to the betterment of society in general.
  18. [119]
    It is acknowledged that his insight and judgement seem to be developing.  Mr Beasley feels he doesn’t need any mental health support or medication currently. He has acknowledged he would now be prepared to ask for help if he needs it in the future.
  19. [120]
    Unfortunately, there was no independent health assessment available that could guide the tribunal as to precisely how long he has ceased drugs.  There is no up to date assessment of his mental health or his current insight into his behaviour and judgement. Further, what preventative strategies Mr Beasley uses to reduce the risk of a repetition of his past drug use and offending behaviour.
  20. [121]
    Is the applicant’s case out of the ordinary, unusual, or special, such that the applicant should not have a positive notice?
  21. [122]
    Even though Mr Beasley has made gains in his life, the tribunal cannot be satisfied that enough progress has been made for it to determine that this is not an exceptional case particularly with the recency of offences and considerable stress on his mental health. 

Conclusion

  1. [123]
    The tribunal is mindful of the fact that a Blue Card is ‘fully transferable’. The holder of a Blue Card can undertake a wide range of child-related activities. The Blue Card is unconditional in its effect.
  2. [124]
    The tribunal must make its determination by reference to what activities the holder of a Blue Card could conceivably undertake, and not what activities the holder of the Blue Card intends to undertake in relation to child-related activities.
  3. [125]
    The tribunal is not to consider the impact of its decision upon the applicant. The sole focus must be upon children.
  4. [126]
    The tribunal considers that this is an exceptional case in which it would not be in the best interests of children for a positive notice to issue.

Footnotes

[1]  In response to recommendations 4, 5 and 6 of the tribunal’s directions of 23 March 2017, that he obtain an independent psychological or psychiatric report as to his suitability for child related employment.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 63.

[3]  Notice To Produce material from Toowoomba Base Hospital. Also recorded in Discharge Summary 8 April 2015.

[4]  QCAT Act, s 20(2).

[5]  Ibid, s 20(1).

[6]  Ibid, s 19(3).

[7]  Ibid, s 24(1).

[8]  WWC Act, s 6.

[9]  Ibid, s 360.

[10]  Ibid, s 5.

[11]  A ‘serious offence’ is defined in s 167 of the WWC Act.

[12]  WWC Act, s 221(2).

[13]  Ibid, s 353.

[14] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 (Philippides J).

[15] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 (Philippides J).

[16] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.

[17]  The WWC Act, s 226(iii).

[18]  Ibid, s 226(iv). 

[19]  Ibid, s 226(2)(e).

Close

Editorial Notes

  • Published Case Name:

    Damien Beasley v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    Beasley v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2017] QCAT 316

  • Court:

    QCAT

  • Judge(s):

    Member Murray

  • Date:

    15 Sep 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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