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Fitzpatrick v Chief Executive Officer, Public Safety Business Agency

 

[2016] QCAT 19

CITATION:

Fitzpatrick v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 19

PARTIES:

Clair Fitzpatrick

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML110-15

MATTER TYPE:

Children's matters

HEARING DATE:

23 October 2015

HEARD AT:

Maroochydore

DECISION OF:

Senior Member Brown

DELIVERED ON:

18 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Public Safety Business Agency to issue a negative notice to Clair Fitzpatrick is set aside and Clair Fitzpatrick is to be issued with a positive notice and blue card.
  2. The application for a non-publication order is refused.

CATCHWORDS:

BLUE CARD – where negative notice issued – whether exceptional case – consideration of relevant factors - admissibility of evidence inconsistent with conviction

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 20, s 24, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226

Anon 2 v XYZ [2008] VSC 466

BJC v Commission for Children and Young People and Child Guardian [2014] QCAT 15

Briginshaw v Briginshaw (1938) 60 CLR 336

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

Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1

Jackson v Commission for Children and Young People and Child Guardian [2014] QCAT 186

Minister for Immigration and Ethnic Affairs v Gungor [1982] 42 ALR 209

APPEARANCES:

APPLICANT:

Clair Fitzpatrick represented herself

RESPONDENT:

Public Safety Business Agency represented by Ms K Heath

REASONS FOR DECISION

What is this application about?

  1. [1]
    Clair Fitzpatrick is 22 years old and was, until recently, studying to obtain a degree in occupational therapy at James Cook University (“JCU”). Ms Fitzpatrick is required to hold a blue card in order to continue with her studies.
  2. [2]
    On 15 April 2015, the Public Safety Business Agency (‘PSBA’) issued Ms Fitzpatrick with a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’). As a consequence, Ms Fitzpatrick cannot be issued with a blue card and she is prevented from completing her studies at JCU. 
  3. [3]
    Ms Fitzpatrick is seeking a review of the decision by the PSBA.
  4. [4]
    Ms Fitzpatrick was convicted in the Caloundra Magistrates Court on 18 December 2014 of five offences: (1) possessing ecstasy; (2) possessing cocaine; (3) possessing cannabis; (4) possessing utensils used in connection with the smoking of a dangerous drug and (5) possessing property used in connection with a dangerous drug. No conviction was recorded in respect of the charges. Ms Fitzpatrick was placed on a recognisance of $1,000 and a good behaviour bond for 12 months. In respect of the charge of possessing property, Ms Fitzpatrick was also fined $250.00.

The statutory framework

  1. [5]
    Where an applicant for a positive notice/blue card has a conviction for an offence other than a serious offence, the Commissioner must issue a positive notice to the applicant unless satisfied it is an exceptional case in which it would not be in the best interests of children to issue a positive notice in the circumstances.[1]
  2. [6]
    The Act does not define an exceptional case. The Tribunal, in deciding the matter afresh, must exercise its discretion in deciding whether an exceptional case exists. The determination of an exceptional case is a matter of discretion.[2] The Tribunal is required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that an exceptional case exists in which it would harm the best interests of children if a positive notice issued.[3] There is no onus on either party to prove that an exceptional case exists.[4] A blue card is issued without condition and a successful applicant can work in any area of child related employment whether supervised or not.
  3. [7]
    In deciding whether an exceptional case exists, the decision maker must have regard to a range of matters.[5] Decision makers are also required to have regard to anything else relating to the commission of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.[6] The correct approach to whether there is an exceptional case is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.[7]
  4. [8]
    The focus of the Act is on the protection of the rights, interests and wellbeing of children and young people through a scheme requiring the development and implementation of risk strategies and the screening of persons employed in particular employment or carrying on particular businesses.[8] The welfare and best interests of children are paramount.[9] The Tribunal must take these matters into consideration in determining this application.
  5. [9]
    The Tribunal must conduct a review of the merits of the decision by way of a fresh hearing.[10] The purpose of the review is to produce the correct and preferable decision.[11] The Tribunal may:
    1. Confirm or amend the decision;
    2. Set aside the decision and substitute its own decision;
    3. Set aside the decision and return the matter to the original decision maker for reconsideration.[12]

Ms Fitzpatrick’s criminal history

  1. [10]
    Ms Fitzpatrick’s convictions relate to possession of drugs, utensils and property relating to drug use on 5 December 2014.
  2. [11]
    The police brief of facts was summarised by the PSBA as follows: Ms Fitzpatrick was driving to a music festival in Brisbane with 3 friends. Police intercepted the vehicle. Ms Fitzpatrick consented to the police undertaking a search of the vehicle. A water pipe was observed on the rear seat of the vehicle. Two plastic containers of cannabis weighing approximately 5 grams were located in the boot of the vehicle. A ceramic bowl with the remnants of cannabis in it was located in the glove box. Also in the glove box was a metal tin containing nine ecstasy pills. The metal tin also contained a clip lock bag containing approximately 1 gram of cocaine. A second plastic water pipe was also located in the boot. A pair of scissors used to cut up cannabis was located in the passenger side door.
  3. [12]
    Ms Fitzpatrick told police that:
    • The cannabis was hers and that she had purchased it a day or two previously for $100;
    • The white ceramic bowl was hers and she had used it to cut up cannabis;
    • The ecstasy pills were hers and had been purchased that day for $200 to $300;
    • The cocaine in the clip log bag was hers and that she had purchased it earlier in the day for $300;
    • Both water pipes were hers and had been used by her for the purposes of smoking cannabis;
    • The scissors had been used to cut up cannabis;
    • She was a regular user of cannabis.
  4. [13]
    Ms Fitzpatrick pleaded guilty to the offences in the Caloundra Magistrates Court on 18 December 2014. She entered into a $1,000 recognisance on her own undertaking to be of good behaviour for 12 months and fined $250. No conviction was recorded.
  5. [14]
    During the hearing Ms Fitzpatrick gave evidence disputing certain aspects of the convictions and the details from the police brief of evidence relied upon by the PSBA.
  6. [15]
    In exercising its review function, the Tribunal cannot go behind a relevant conviction.[13] A conviction is conclusive in relation to the offence charged and the sentence imposed.[14]
  7. [16]
    Accordingly, the Tribunal will consider and accept the circumstances of the offending as pleaded to by Ms Fitzpatrick and as contained in the police brief.

What does Ms Fitzpatrick say?

  1. [17]
    Ms Fitzpatrick moved from South Africa to Australia with her family when she was 5 years of age. She has lived in Australia permanently since that time. After completing her senior education, Ms Fitzpatrick was accepted into the bachelor of occupational therapy course at JCU.
  2. [18]
    Throughout her tertiary studies, Ms Fitzpatrick suffered what she describes as anxiety attacks due to stress. She describes having trouble sleeping and feeling run down and tired.[15]
  3. [19]
    Ms Fitzpatrick says that in 2012 she first saw a psychologist and whilst she benefited from these sessions, those benefits were temporary. Ms Fitzpatrick says that she saw a number of different psychologists and experienced difficulty identifying someone with whom she could develop a rapport. Ms Fitzpatrick was taking no medication at this time to alleviate the symptoms of anxiety apart from herbal remedies notwithstanding that various doctors had recommended that she take anti-depressant medication.
  4. [20]
    On 27 July 2014 Ms Fitzpatrick was an occupant in a house in Rockhampton at which there was a fire. The house burnt down in the early hours of the morning. Ms Fitzpatrick was instrumental in assisting the other occupant of the house to escape the fire.
  5. [21]
    Ms Fitzpatrick says that the house fire had a significant psychological impact upon her and that she subsequently experienced flashbacks, bad dreams and anxiety attacks. Her sleep was also disrupted. She says that the techniques she had used to manage her anxiety to that point were no longer effective.
  6. [22]
    Consequently in September 2014, Ms Fitzpatrick consulted a GP, Dr Malik, who prepared a mental health assessment and plan. Dr Malik diagnosed Ms Fitzpatrick as suffering from generalised anxiety disorder. He prescribed anti-depressant and sleeping medication. Whilst one of the scripts was subsequently filled, Ms Fitzpatrick did not take the prescribed medication.
  7. [23]
    Dr Malik provided Ms Fitzpatrick with the names of several psychologists whom she could contact to undertake counselling sessions. A review of the plan was to be undertaken in 3 months. In the event of emergency care, Ms Fitzpatrick was to consult a GP, rely upon family supports or contact the Acute Care Team at the Rockhampton Base Hospital.
  8. [24]
    Ms Fitzpatrick agreed to the plan and the proposed goals and actions identified in the plan.
  9. [25]
    Ms Fitzpatrick says that as she was planning on leaving Rockhampton at or about this time she did not consult with any of the recommended psychologists as she wished to see someone with whom she could undertake treatment in the long term.
  10. [26]
    Some time after the house fire – Ms Fitzpatrick is unable to say precisely when, but before November 2014 – Ms Fitzpatrick was attacked by a dog and bitten on the foot. She was required to seek treatment at hospital for the wounds. As a result, Ms Fitzpatrick was unable to commence a university placement as scheduled as she was unable to wear closed in shoes which was a workplace health and safety requirement.
  11. [27]
    Ms Fitzpatrick subsequently commenced the placement and completed part thereof however her mother was suffering ill health and Ms Fitzpatrick was experiencing increased stress and anxiety as a result of the house fire and the dog bite. As a result, Ms Fitzpatrick was required to take a week away from the placement. The effect of this was that she could not complete the placement which in turn impacted upon her being eligible to undertake an overseas placement in 2015.
  12. [28]
    In September 2014 Ms Fitzpatrick says she began to use cannabis to alleviate stress. She would use cannabis during the week to assist her to sleep. Ms Fitzpatrick says that her cannabis use varied according to the stress she was experiencing.
  13. [29]
    Ms Fitzpatrick continued to use cannabis after committing the offences in December 2014. She says that she ceased cannabis use after being notified by the PSBA in January 2015 that her blue card was being re-assessed.
  14. [30]
    As a result of the loss of her blue card, Ms Fitzpatrick has been prevented from continuing with her studies and completing her occupational therapy degree at JCU.
  15. [31]
    Ms Fitzpatrick says that she has undertaken a number of lifestyle changes since the loss of her blue card. She says that she has ceased using cannabis or other illicit substances and no longer associates with the people she was seeing (including those with whom she was charged) at the time of the offending. Ms Fitzpatrick told her parents about what had occurred in relation to her offending which, she says, was very difficult and had been a considerable burden.
  16. [32]
    As part of her sentencing for the offending, Ms Fitzpatrick completed a Court Illicit Drug Diversion Program with the Rockhampton Alcohol and Other Drugs Service. There is before the Tribunal a letter from Geraldine Leach, psychologist, confirming Ms Fitzpatrick’s participation in the program.
  17. [33]
    Ms Fitzpatrick has seen a psychologist, Lucia Casasnovas on 2 occasions. She has seen a psychologist to assist her to cease smoking. She has undertaken voluntary drug screening and has produced to the Tribunal the result of four tests conducted over the period May 2015 to October 2015 in which Ms Fitzpatrick tested negative for various illicit substances including cannabis.
  18. [34]
    Ms Fitzpatrick views her previous cannabis use as a form of self-medication. She says that prior to her offending she had a number of significant stressors in her life including her studies, the effects of the house fire and the dog attack and the financial pressures her family was experiencing as a result of her father not being in employment. Ms Fitzpatrick says that at the time she was using cannabis she was not in a position to pay for a psychologist and that she was trying to use her own coping techniques.
  19. [35]
    Ms Fitzpatrick says that with the assistance of a psychologist she has stopped smoking cigarettes. She says that the psychologist assisted her to identify the triggers for her smoking and the strategies to avoid such triggers using diversion rather than aversion techniques.
  20. [36]
    Should a stressful situation arise in the future, Ms Fitzpatrick says that she would utilise her coping techniques and strategies. She would consult a psychologist and seek support from her partner with whom she lives. Ms Fitzpatrick says that she now understands the triggers for her previous cannabis use. She understands the impact of her cannabis use and says that the primary impact of such use is not the loss of her blue card but rather the impact upon her health in the longer term. Ms Fitzpatrick says that she would never place a child or adult at risk through the use of illicit substances.
  21. [37]
    Ms Fitzpatrick says that she has experienced a significant stress event since her offending which has not resulted in her resuming cannabis or using other illicit substances. This event involved a life threatening illness suffered by her father. Ms Fitzpatrick says that she was able to deal with this event using the strategies she has developed.
  22. [38]
    A number of witnesses gave evidence for Ms Fitzpatrick.
  23. [39]
    Lucia Casasnovas is a clinical psychology registrar. Ms Casasnovas is training to become a clinical psychologist and expected to achieve this goal within a matter of weeks of the hearing. Ms Casasnovas provided a report to the Tribunal.[16] She acknowledged that this was the first report of this type she had prepared.
  24. [40]
    Ms Casasnovas had the benefit of the PSBA’s reasons for refusing the blue card. She had seen Ms Fitzpatrick on 2 occasions. Ms Casasnovas was of the opinion that Ms Fitzpatrick had a generalised anxiety disorder.
  25. [41]
    In summary, Ms Casasnovas said that:
    • Ms Fitzpatrick demonstrated insight into the impact that her behaviour would have on children stating that she would not work with children under the influence of illicit substances as this would be unacceptable, as it would impair her judgement and put children at risk;
    • Ms Fitzpatrick expressed remorse in respect of her offending behaviour;
    • Ms Fitzpatrick acknowledged that she would have no further involvement with illicit substances or with persons using illicit substances;
    • Ms Fitzpatrick had used cannabis after the house fire to help her sleep;
    • Ms Fitzpatrick had reported suffering symptoms of anxiety since childhood;
    • Ms Fitzpatrick stated that she took full responsibility for her offending behaviour and that she acknowledged the error of such behaviour.
  26. [42]
    Ms Casasnovas recommended that Ms Fitzpatrick undergo regular psychotherapy treatment. She did not identify any prompts that suggested Ms Fitzpatrick should be referred to a medical practitioner for the prescription of medication. Ms Casasnovas was of the opinion that a patient not taking prescribed psychotropic medication would not of itself be an issue in terms of patient behaviour if the person was able to utilise other treatment modalities and effectively self manage or the relevant symptoms otherwise resolved.
  27. [43]
    Ms Casasnovas was not able to comment on how Ms Fitzpatrick was managing at the time of the hearing. She observed however that at the time she saw Ms Fitzpatrick she presented as calm, without inconsistences in presentation and demonstrated as being open to treatment.
  28. [44]
    Trudie Proustie has known Ms Fitzpatrick for 10 years and saw her every 4 to 6 weeks unless Ms Fitzpatrick was away on a university placement. Ms Proustie was Ms Fitzpatrick’s hair stylist. Ms Proustie was aware of Ms Fitzpatrick’s offending and of the penalty imposed. She said that Ms Fitzpatrick’s offending behaviour surprised her and that she was not aware of any similar previous behaviour. Ms Proustie said that Ms Fitzpatrick had told her after the house fire that she was struggling with the effects of same and the pressures of her university studies.
  29. [45]
    Helen Bant has known Ms Fitzpatrick since she was 11 years old. Ms Bant was aware of Ms Fitzpatrick’s offending and of the penalty she had received. Ms Bant said that hearing the news of the offending was a ‘bombshell’ and that she was surprised and shocked at the news.
  30. [46]
    Ms Bant said that she observed a change in Ms Fitzpatrick after the house fire noting that she was teary and anxious and generally more afraid. Ms Bant gave evidence that Ms Fitzpatrick’s mother would not light the fire in her house lest it make Ms Fitzpatrick more anxious.  Ms Bant said that she had seen Ms Fitzpatrick in the last 6 months and that she appeared to be happier and more settled.
  31. [47]
    Kathleen O’Reilly has known Ms Fitzpatrick for 5 to 6 years. Ms O’Reilly was aware of Ms Fitzpatrick’s offending behaviour. Ms O’Reilly’s gave evidence that Ms Fitzpatrick appeared very upset after the house fire and that she had observed Ms Fitzpatrick and her mother crying when discussing the house fire.

What does the PSBA say?

  1. [48]
    The PSBA says that Ms Fitzpatrick’s is an exceptional case and that the decision to refuse her blue card should be confirmed.
  2. [49]
    The PSBA acknowledges that Ms Fitzpatrick’s referees speak highly of her; that she has displayed commitment to obtaining a degree and working in the allied health industry; that she no longer associates with people who use illicit substances including her co-offenders; that she was able to cope with her father’s recent illness; and that she remains committed to the path of rehabilitation.
  3. [50]
    There are however a number of factors says the PSBA which are relevant from a risk perspective: her offending is quite recent and insufficient time has passed since the offending; the cannabis use only ceased in January 2015 and then only after she had received notice in relation to the reassessment of her entitlement to hold a blue card; that being charged and convicted with the drug offences was not sufficient to deter her cannabis use; and it was only after receiving notice from the PSBA that Ms Fitzpatrick became aware of the serious consequences of her offending.
  4. [51]
    The PSBA says that it is unclear just what Ms Fitzpatrick’s commitment is to treatment should she require it. There is, says PSBA, no expert evidence in relation to Ms Fitzpatrick’s history of anxiety and the relevance of that history should she be faced with future life stressors. There is also no evidence as to whether the strategies Ms Fitzpatrick now has in place will assist should a future stressful event occur.
  5. [52]
    It is a concern says the PSBA that Ms Fitzpatrick was, prior to the offending, diagnosed with a generalised anxiety disorder and prescribed medication and that she chose not to use that medication.
  6. [53]
    Whilst the PSBA acknowledges that some weight should be given to the drug screen tests, more weight could be given to such screening had they been random.
  7. [54]
    The PSBA also expresses some reservations as to the weight to be given to the report of Ms Casasnovas noting that the report is brief, she was not Ms Fitzpatrick’s treating psychologist, the documents with which she was briefed were limited to the statement of reasons by the PSBA, she was not an experienced medico-legal report writer, and that Ms Casasnovas was not (at least at the time she saw Ms Fitzpatrick and authored the report) a qualified clinical psychologist.
  8. [55]
    It is an important factor, says the PSBA, that Ms Fitzpatrick did not act upon the recommendations of Dr Malik following the house fire and her presentation for a mental health assessment in September 2014. The PSBA says that Ms Fitzpatrick, rather than undertaking the recommended treatment options, chose to use an illicit substance to self manage her anxiety. These are issues which the PSBA says go to Ms Fitzpatrick’s insight into her substance abuse and offending behaviour.

Discussion and determination

  1. [56]
    In order to make a determination that Ms Fitzpatrick should be issued with a positive notice, I must be satisfied that, on the balance of probabilities and bearing in mind the gravity of the consequences, that an exceptional case does not exist.[17]
  2. [57]
    Ms Fitzpatrick was charged and convicted of the various offences relating to the possession of illicit substances and utensils. No conviction was recorded however Ms Fitzpatrick was fined $250, a recognisance of $1,000 was imposed and she was placed on a good behaviour bond for 12 months. That period has now expired.
  3. [58]
    The offences were committed relatively recently, in December 2014, and this is one of the factors the PSBA points to as a relevant consideration, submitting that insufficient time has elapsed since the offending to gauge whether Ms Fitzpatrick has adopted appropriate strategies to minimise the risk of the triggers that led to her offending.
  4. [59]
    The possession of drugs and utensils is a serious matter particularly when viewed in the context of Ms Fitzpatrick’s evidence that her cannabis use was linked to her long-term history of anxiety. Notwithstanding the specific treatment recommendations made by a general practitioner following the house fire, Ms Fitzpatrick chose not to undertake any of the recommended treatment options and, instead, turned to cannabis use to manage her anxiety. This was clearly an extremely poor decision and one which displayed a lack of insight into her condition and the appropriate treatment for that condition.
  5. [60]
    The fact that Ms Fitzpatrick continued to use cannabis after she had been dealt with for her offending is relevant. She says that it was not until she received notification from the PSBA in relation to her blue card in January 2015 that she ceased cannabis use. Her explanation for this is that it was the communication from the PSBA which brought home to her the serious consequences of her offending. That Ms Fitzpatrick did not perceive her being dealt with by the Court as a sufficiently serious deterrent to ceasing cannabis use is also a matter of concern.
  6. [61]
    Ms Fitzpatrick had varying explanations as to why she did not seek treatment from a psychologist after the preparation of the mental health assessment and plan. She says that she was reluctant to begin treatment in Rockhampton as she was leaving and wanted to ensure that any psychologist she consulted was a person with whom she could develop a long term rapport. Ms Fitzpatrick also says that she could not pay for psychological treatment and therefore did not undertake the recommended treatment. Putting aside the inconsistencies, the effect of Ms Fitzpatrick’s evidence was that she had not investigated the possibility of psychological treatment, including the cost of same, following the preparation of the mental health assessment and plan.
  7. [62]
    There is however no evidence that since January 2015 Ms Fitzpatrick has engaged in the use of illicit substances. She has voluntarily undertaken regular drug screening, the results of which (indicating no use of illicit substances) have been produced to the Tribunal. In addition, Ms Fitzpatrick has undertaken psychological counselling sessions with Ms Casasnovas on 2 occasions prior to the hearing. Ms Fitzpatrick gave evidence that she also consulted a clinical psychologist in January 2015 who assisted her in ceasing smoking.
  8. [63]
    Ms Casasnovas said that she did not identify evidence that would suggest Ms Fitzpatrick was not suitable for child related employment.[18] 
  9. [64]
    As to the adequacy of Ms Casasnovas’s report, whilst brief, it dealt with the issues relevant to Ms Fitzpatrick’s insight, risk factors, protective factors and preventative strategies. I do not accept the PSBA’s submission that Ms Casasnovas’s report should be given less weight on the basis that she was not Ms Fitzpatrick’s treating psychologist. The evidence was that Casasnovas had seen Ms Fitzpatrick on 2 occasions for 1 hour and forty minutes in total. I am of the view that this time was sufficient for Ms Casasnovas to assess and form an opinion about Ms Fitzpatrick.  In any event, as an independent expert it could not be suggested that Ms Casasnovas’s report was in any way influenced by the patient/therapist relationship.
  10. [65]
    I do not accept that Ms Casasnovas’s report should be given any less weight as a result of her not being a clinical psychologist at the time she authored the report particularly given her evidence that her qualification as such was imminent.
  11. [66]
    I accept the evidence of Ms Casasnovas that Ms Fitzpatrick suffers from a generalised anxiety disorder. I also accept the evidence of Ms Casasnovas that, at the time she saw Ms Fitzpatrick, she did not consider Ms Fitzpatrick required referral to a medical practitioner for the prescription of psychotropic medication.
  12. [67]
    Ms Casasnovas notes in her report agreement by Ms Fitzpatrick to undergo fortnightly psychology sessions. This has not occurred, seemingly as a result of Ms Fitzpatrick’s decision to use her own strategies to deal with her anxiety disorder.
  13. [68]
    Ms Fitzpatrick identifies a number of strategies she is utilising to manage her anxiety including ceasing smoking, engaging in yoga and meditation, having a healthy diet and regular exercise, and no longer associating with those who use illicit substances. She identifies other strategies she will utilise to cope with any future stressful events including consulting a psychologist and seeking support from her partner with whom she has been in a relationship for over 12 months and with whom she resides.
  14. [69]
    The character referees relied upon by Ms Fitzpatrick speak of her dedication to her studies and her determination to succeed in life. They also express surprise at her offending which is considered to be out of character.
  15. [70]
    I accept that Ms Fitzpatrick’s offending occurred at a time of considerable personal stress. She had experienced a significant traumatic event in the house fire, which was followed soon thereafter by being attacked and injured by a dog. This, and other events, in turn led to difficulties with her university placement. The offending itself was isolated however I note that the cannabis use occurred over a four to five month period.
  16. [71]
    Furthermore, I find that Ms Fitzpatrick was frank and forthright in her evidence regarding her cannabis use, even when such evidence was arguably against her own interests in the present application.
  17. [72]
    I accept however that Ms Fitzpatrick’s offending was out of character and triggered by a number of significant stressors in her life. I also accept that she is remorseful and has insight into her conduct and the triggers for her offending. That insight appears to have been gained not so much as a result of Ms Fitzpatrick’s being dealt with by the Court as it has been as a result of the consequences of the decision by the PSBA to issue her with a negative notice.
  18. [73]
    I do not consider the effluxion of time since the offending to be a significant factor. As I have observed, the offending was isolated and there is no evidence that Ms Fitzpatrick has used illicit substances since she ceased cannabis use in January 2015. I am of the view that sufficient time has elapsed since Ms Fitzpatrick ceased using cannabis to consider whether her behaviours and coping strategies have been adequately modified.  
  19. [74]
    I accept that Ms Fitzpatrick has nevertheless sufficient insight and understanding of the consequences of her behaviour and of cannabis use more generally. She has acknowledged that cannabis use does not relieve stress and increases anxiety, impacts upon the ability to make informed decisions and impacts the safety of herself and others. She also acknowledges that long-term cannabis use can lead to adverse psychological outcomes.
  20. [75]
    Taking all of these matters into consideration, I am of the view that Ms Fitzpatrick’s case is not an exceptional one. I am of the view that it would not harm the best interests of children for Ms Fitzpatrick to be issued with a positive notice and blue card.
  21. [76]
    Accordingly I set aside the decision of the Public Safety Business Agency to issue a negative notice to Clair Fitzpatrick. Ms Fitzpatrick is to be issued with a positive notice and blue card.

Non publication order

  1. [77]
    Ms Fitzpatrick has applied for a non-publication order. The parties were directed to file submissions. Ms Fitzpatrick says that she has not completed her university degree and that her prospects of employment, particularly working with children, could be jeopardized if the details regarding her application were to be made public.
  2. [78]
    A non-publication order may be made if the Tribunal considers the order is necessary to avoid interfering with the proper administration of justice; to avoid endangering the physical or mental health or safety of a person; to avoid offending public decency or morality; or to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or for any other reason in the interests of justice.[19]
  3. [79]
    The PSBA says that there is no evidence that Ms Fitzpatrick’s mental health would be endangered by the publication of the decision. The PSBA says that the risk to Ms Fitzpatrick’s future employment is not a relevant consideration and that the potential distress, embarrassment and damage to reputation are an insufficient basis, on their own, to justify the making of an order prohibiting or supressing the publication of proceedings.[20]
  4. [80]
    The PSBA says that a non-publication order would not be consistent with the objects of the QCAT Act to enhance the openness and accountability of public administration.[21]
  5. [81]
    In the circumstances, I am not persuaded that there are appropriate grounds to make a non-publication and I decline to make such an order.

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’), ss 221(1) and (2).

[2] Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.

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

[4] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 028.

[5] The Act, s 226(2).

[6] Ibid, s 226(2)(e).

[7] BJC v Commission for Children and Young People and Child Guardian [2014] QCAT 15.

[8] The Act, s 5.

[9] Ibid, s 6.

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20.

[11] Ibid, s 24.

[12] Ibid, s 24(1).

[13] Jackson v Commission for Children and Young People and Child Guardian [2014] QCAT 186.

[14] Minister for Immigration and Ethnic Affairs v Gungor [1982] 42 ALR 209.

[15] Applicant’s Life Story.

[16] Report dated 22 July 2015.

[17] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; Briginshaw v Briginshaw (1938) 60 CLR 336.

[18] Report L Casasnovas, dated 22 July 2015.

[19] QCAT Act, s 66(2).

[20] Anon 2 v XYZ [2008] VSC 466.

[21] QCAT Act, s 3(d).

Close

Editorial Notes

  • Published Case Name:

    Clair Fitzpatrick v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    Fitzpatrick v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 19

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    18 Jan 2016

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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