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- Unreported Judgment
WJD v Chief Executive Officer, Public Safety Business Agency  QCAT 264
Chief Executive Officer, Public Safety Business Agency
22 July 2016
25 July 2016
That a positive notice for a blue card is issued to WJD.
GENERAL ADMINISTRATIVE REVIEW - BLUE CARD- whether exceptional case - where adult no longer uses drugs – where adult able to demonstrate commitment to abstinence, protective strategies, and formal and informal support networks – whether exceptional case.
Queensland Civil and Administrative Tribunal
Act 2009 (Qld), s 19, s 20 , 66 Schedule 7
Working With Children (Risk Management and
Screening) Act 2000 (Qld), s 6, s 221, s226.
Paula Hughes, Public Safety Business Agency.
REASONS FOR DECISION
- WJD’s blue card application was rejected by the Public Safety Business Agency in their decision of 27 January 2016.
- WJD is a 45 year old man who works as a painter. As part of his role he may be required to enter into child care centres and schools to conduct painting works, requiring a blue card.
- The Public Safety Business agency determined that it was not in the best interests of children that he be issued a blue card on the basis of his criminal history. Specifically the following offences are noted in his criminal history: Possessing a dangerous drug, possessing utensils or pipes that had been used, producing dangerous drugs and possessing anything used in the commission of a crime. The offences arise from a police search of his home on 5 December 2011, where a hydroponic setup for cannabis production was found as well six cannabis plans and 65.1grams of cannabis leaves. A glass pipe was also found in the bin and he told the police he had smoked methamphetamine the previous day.
- The Working with Children (Risk Management and Screening Act) (hereafter “the Act”) regulates the issuing of blue cards. Section 221 of this Act requires the decision maker to issue a positive notice for a blue card unless the offences are serious or precluding in nature or an exceptional case exists such that it is not in the best interests of children that the applicant holds a blue card. The offences in WJD criminal records are not serious offences in terms outlined within the Act.
- Whether there is an exceptional case on the facts presented here is in issue. The term exceptional case is not defined in the Act, and case law, has determined it is to be determined on a case by case basis in light of the purpose of the Act, as a question of fact and degree.
- The Tribunal is required to apply the paramount consideration of the welfare and best interests of children stated at Section 6 of the Act as the primary consideration, as well mandatory considerations stated at Section 226(2) of the Act. The case of Commissioner for Children and Young People v Maher &Anor  QCA 492 requires the Tribunal use a process of balancing risk and protective factors in exercising its discretion.
- The Tribunal notes in terms of considerations relevant to WJD criminal history that he has convictions for the offences. The offences were committed four and a half years ago when WJD was 40 years old. He was fined moderates amounts of $500 and $750, and no convictions were recorded for either offence. No information was provided relevant to considerations at section 226(2) (f)-(h).
- The Tribunal must consider the relevance of the offence to employment and carrying on a business that involves or may involve children. The drug related offences pertained to possession of drugs and drug paraphernalia, and the production of cannabis. There was no direct effect on children of this offence. WJD gave evidence that his children were aged 21 and 25 at the time of the offence and not living with him.
- WJD indicated that children were not exposed to his drug related conduct, and that he was not affected by drugs when he was in an environment where children were present. Notwithstanding, there remains concerns about role modelling judgement and altered behaviour where drug users are around children. The active use of drugs raises questions about the ability to protect children from drugs and the behaviour.
- The decision maker may also consider anything else relevant to the commission of the offence considered relevant. WJD has provided evidence which indicates that he was suffering from a work related back injury to his middle back which caused him considerable pain for approximately 16 months from March 2009 until December 2011. He stated that he grew hydroponic cannabis to manage his pain in circumstances where prescribed medication had undesirable side effects. He explained he had been prescribed Trammil and Vallium which had the effect of creating a “fuzzy or blurry sensation” which affected his orientation and focus throughout the day. He said his sleep was badly disturbed by the medication and the pain and found Cannabis initially assisted him to manage his sleep and think more clearly during the day. He said it was too expensive to purchase, so researched how to make his own to reduce the costs. He gave evidence that he started to use approximately August /September 2009 when he became desponded that his Orthopaedic surgeon had given him a poor prognosis. The report of Dr D dated 20 August 2009 noted his “symptoms were significant” and was “unable to return to work”. WJD explained that following this, he became despondent, and accessed cannabis through a friend, who continued to supply him until he grew his own.
- He also gave evidence that he had commenced methamphetines “a couple of weeks before the charges were laid . He said he had no excuse for using this. He indicated that at the time he was experiencing significant emotional issues, being separated from his wife for 2-3 months, and continuing to experience pain and loss from reduced employment. He started to associate with people who were involved in drugs during this separation.
- WJD reflects upon these offences with remorse. He considers they are isolated due to the circumstances arising in his separation from his long time partner and unresolving back pain. He indicated that he ceased drugs on the date the police became involved and has not consumed since that time, nor intends to do so. He stated that “it was not a road I wanted to be on. I had just about lost everything, my wife and family, and I wanted to get back on track. He explained that he “ just stopped” using drugs through willpower. He underwent counselling in relation to his relationship and general life issues, and managed his pain through alternative supports such as an inversion table which pulls nerves and muscles for a brief period while inverted. He makes use of twice weekly massages and draws upon a healthy and supportive relationship with his wife to manage his emotions and physical pain. He stretches daily, uses a exercise ball to stretch his back and does hydrotherapy twice each week. He also walks regularly.
- WJD denies that he would use drugs again. He said that after a while the cannabis started to negatively affect him, although it had initially helped to relieve his symptoms. He said over time life became to revolve around drug use and he did not want that sort of life. He stated that he discontinued his associations with those who he used drugs with , and that while he occasionally sees them now, and they do offer him drugs from time to time he consistently refuses this, not wanting to put in jeopardy the happiness that has been restored to has life through reconciliation with his wife and progress in his career. He indicated that he and his wife intentionally set about reconciliation on the basis of a life without drugs.
- He said that his wife and children had been shocked and angry that the had turned to drugs and sought to disengage from drugs permanently.
- He considered that drug use around children brought with it the risk of impaired judgment and indicated that he had not been around children under the influence of a drug in the past.
Evidence of Witnesses
- AL gave evidence that he had known WJD through work for 10 years. He stated that he has no concerns about WJD; conduct around children. WJD has regular contact with his children aged 3 and 18 months.
- He had observed WJD on site painting in schools in the past and seen that his conduct was appropriate toward the children, being focused on his painting and never under the influence of drugs.
- AL stated that WJD and KW had a relationship he and his workmates admired, and was surprised in 2011 there was instability in his life and relationship when he was out of work. He said since this period of instability WJD and his wife were back on track he is back in charge of everything and much happier.
- He had no reason to believe that WJD continued to be engaged in drug use He said he saw him several times most weeks in work related consultation at either of their homes. .
Evidence of KW
- KW is WJD partner of 29 years, married for the past 13 years with the brief period of separation noted previously. The couple have two children, a girl aged 30 years and a son aged 25 years. She described him as a great father, who had “been there” for the children all their life.
- She explained that she had a very strong anti drug stance, and she had been angered by his conduct. She gave evidence that she had not been aware that he had been taking any drugs prior to the police incident and was shocked to discover that he was using during the separation. She said she was not aware of any drug use prior to the separation, but noted that he had been “away with the fairies”: on occasions, but in retrospect she couldn’t discern whether it may have been illicit or prescribed drugs which had this effect. She recounted the period around the end of 2011 as a time of significant distress for she and KW, with the family under much pressure financially and emotionally arising from the injury and its impact on their life. Since resolution of the issues confronting them at that time, she stated” it is my job to keep him on track.” She stated that she controlled the finances and gave him a spending allowance each week, and the balance is applied to household expenses and savings. The couple have successful saved to upgrade their vehicle. She said the allowance continues now because it works well to assists them to save. She said WJD “had to prove himself” to her that he would keep clean, and he has done that. She said that they keep very active and busy with regular exercise. They debrief each day with a walk after work and share the day’s experiences with one another. Her description of his alternative pain management techniques were consistent with that given by WJD.
- The Tribunal considers that there are substantial protective factors associated with WJD and KW relationship that should be taken into consideration. They have been together for 29 years and raised two children to adulthood, and are grandparents. WJD derives considerable emotional support from this relationship which actively processes problems and daily issues as they arise. KW presented a non negotiable position with respect to WJD use of drugs, and the Tribunal accepts that WJD has chosen remove drugs from his life in order to continue this key relationship. WJD and KW have undergone relationship counselling in the past. They present and image of a stable strong and healthy relationship.
- The Tribunal considers that the evidence indicates that there was a period instability in WJD’s life when he was in considerable pain as a result of his back injury and that this had ramifications on his key relationships at the time. He contextualised these factors as relevant to the discrete period of time that he illegally used cannabis for pain relief, and a brief utilisation of methamphetamine. The Tribunal accepts that the his and his witnesses evidence suggests that drugs use is no longer a current factor in his life. He actively engages in alternative means of managing pain. He has dealt with the triggers which led to drug use which including, pain, job loss, and relationship breakdown and has a range of healthy coping mechanisms in place which replace drug use.
- The Respondent submits that while there are many protective factors, the risk factors should override these. They note that WJD is a mature offender, who consumed cannabis over a two year period on a daily basis. They note that he was found with a glass pipe and methamphetamine which is a Schedule 1 drug under the Drugs Misuse Regulations 1987, reflecting the dangerous and harmful nature of this drug which potentially seriously impacts upon a person’s behaviour and psychology. The Respondent asserts that users are not appropriate to work with children who should be safeguarded from drug users.
- The Tribunal agrees with this contention, but considers that the evidence indicates that WJD has not engaged with this type of drug use since December 2011. The Tribunal agrees that the clear drug screen dated March 2016 submitted as part of the applicant’s material cannot be relied upon. However, the Tribunal relies on the evidence of KW in particular WJD presented as a particularly strong position in relation to drug use in her home, and has monitored and supported to ensure he has a range of coping mechanisms as alternatives, and a clear choice between the relationship with her and drugs. I accept her evidence, although I note that as his spouse, there are some objective reservations about her evidence. Notwithstanding, she presents as a credible witness and a strong protective factor in WJD’s life.
- I accept the evidence of WJD and his witnesses that he no longer uses drugs. WJD did not minimize his offences. He showed remorse for illegal actions taken and the damage it had done to his life at that time with the potential loss of his family.
- I have considered the risk and protective factors in this matter. WJD criminal history is characterised by offences relating to the production and possession of cannabis, through a reasonably sophisticated hydroponic system in his home, and the possession of methamphetamine. He indicated that he used cannabis daily from August 2009-December 2011 for pain relief.
- It would not be suitable for a person who continues to use drugs in this way to be in a position to work with children. In such a case children may be exposed to danger through altered behaviour perception and judgement and poor role modelling. However, the evidence in this case indicates that he no longer uses drugs and is at minimal risk of relapse. The offences are isolated to a period of WJD life and he has no other convictions in Australia. He has a drink driving offence in New Zealand some 37 years ago, apart from this he has no other criminal record. The offences are not child related.
- I am satisfied that he has built up a range of alternative coping mechanisms that provide him with an ability to deal with the stressors in his life that may have led to drug use in the past. He has a strong and supportive primary relationship where-in drug use will not be tolerated, and he demonstrated that he does not see to jeopardise this. He has a stable career and many personal relationships. He spends his socialising and keeping kit and healthy, swimming and walking. He has demonstrated remorse for the offences and accepts that he was a poor role model for children during that period of his life where he used drugs. The evidence suggests he is unlikely to relapse.
- Given all of these circumstances, I consider that the protective factors outweigh the risk factors. This is not an exceptional case in which the best interests of children would not be protected if a blue card issued. Therefore a positive notice must issue. The decision of the Chief Executive of the Public Safety Business Agency is set aside.
Non Publication order.
- WJD sought his identity to be kept private. He indicated that he was concerned that his livelihood may be affected in relation to future employment. The Respondent objected to such an order . The respondent submitted that a presumption of publication exists and that there were no grounds under section 66 (2) which would rebut this presumption. The Respondent stated that invasion of privacy and embarrassment is not sufficient to find a reason to override the requirement for open justice. The Tribunal notes it is the clear intent of the QCAT Act is such matters will be public and records of the proceedings will be available.
- The Tribunal notes that under section 66 (2) the Tribunal may grant a non publication order for any other reason in the interests of justice. I am satisfied that it is not in the interests of justice to release the identity of the Applicant and his witnesses, and that transparency is achieved through the publication of the reasons in a de-identified format.
 Commissioner for Children and Young People v Maher &Anor  QCA 492.
* Reasons amended to correct references to parties.
- Published Case Name:
WJD v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
WJD v Chief Executive Officer, Public Safety Business Agency
 QCAT 264
25 Jul 2016