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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Joses v Director-General, Department of Justice and Attorney-General  QCAT 229
OLIVIA ANGELA MARIA JOSES
DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
23 August 2019
11 June 2019
The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is an exceptional one within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside, and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has conviction for drug offences – where not categorised as serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 354, s 360
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28
FMA v Chief Executive Officer, Public Safety Business Agency  QCAT 210
REASONS FOR DECISION
- Ms Joses, a 29 year old woman, applied for a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), to enable her to work as a dental assistant, to complete her personal training course and in the future undertake volunteer work.
- The applicant’s criminal history, arising essentially from the same set of facts, comprises four offences:
- (a)Possession of dangerous drugs;
- (b)Contravention of a direction or requirement;
- (c)Assault or obstruction of a police officer; and
- (d)Possession of utensils or pipe etc. that had been used.
- The respondent proposed to issue a negative notice so invited the applicant to make submissions about whether or not there was an exceptional case for the applicant.
- Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, 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 positive notice to be issued. The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
- The respondent issued a negative notice on 9 October 2018 and Ms Joses seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
- Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’ is entitled to apply for a review of a ‘chapter 8 reviewable decision’ within the prescribed 28 day period. This includes a decision as to whether or not there is an exceptional case if, because of the decision, the respondent issued a negative notice.
The Legislative Framework
- The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act. The purpose of the Tribunal’s review is to produce the correct and preferable decision, on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits. The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount. On review, the Tribunal may confirm or amend the decision; set the decision aside and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.
- The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland. The principles under which the WWC Act is to be administered are:
- the welfare and best interests of a child are paramount;
- every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
- It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.
- Section 221 of the WWC Act provides:
- Subject to subsection (2), the chief executive must issue a positive notice to the person if—
- the chief executive is not aware of any police information or disciplinary information about the person; or
- the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
- investigative information;
- disciplinary information;
- a charge for an offence other than a disqualifying offence;
- a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note for subparagraph (iv) — For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).
- the chief executive is aware of a conviction of the person for an offence other than a serious offence.
- If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.
- For the present purposes a positive notice must be issued unless the Tribunal is satisfied it is an exceptional case, in which it would not be in the best interests of children for a positive notice to be issued.
- The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:
…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.
- In determining whether there is an exceptional case when a person has been convicted of, or charged with, an offence, the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act, as follows:
- in relation to the commission, or alleged commission, of an offence by the person—
- whether it is a conviction or a charge; and
- whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
- when the offence was committed or is alleged to have been committed; and
- the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
- in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
- any information about the person given to the chief executive under section 318 or 319;
- any report about the person’s mental health given to the chief executive under section 335;
- any information about the person given to the chief executive under section 337 or 338;
- anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
- The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’
- ‘Conviction’ is defined in Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
- In determining whether there is an exceptional case the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved. The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.
The Material and Evidence
- The applicant provided the Tribunal with her application, her life story with supplement and references. She gave oral evidence, as did three referees. She was given the opportunity to ask questions and to make oral submissions.
- The respondent provided the Tribunal with its Reasons for Decision and attachments comprising pages BCS 1-44. The respondent had the opportunity to cross examine Ms Joses and her witnesses and made final oral submissions as well as handing up written submissions.
- The circumstances giving rise to the offences occurred on 18 January 2016 when the applicant was the driver of a car, with two friends as passengers, and she was intercepted and pulled over by the police as a result of the occupants’ suspicious behaviours.
- While being detained for the purposes of a search, the applicant was moving around and reached into her underwear. Despite the police asking her to stop she refused to comply with police directions. She removed something from her underwear and when police asked her to stop moving and to let go of the item in her hand she refused. She wrestled with police who were forced to remove the item from her. The items removed from her underwear were 2 clip seal bags containing 1.5 grams and 0.07 grams of methylamphetamine respectively. The applicant told police she had been given the items by her friends in the car before police pulled them over and knew it was drugs. Police searched the applicant’s handbag and found a cone piece with black residue on it which the applicant said she has used to smoke cannabis through a bong the night before.
- On 19 May 2016, the applicant pleaded guilty to the charges set out above and was fined $960, with no conviction recorded. In sentencing the Magistrate noted that Ms Joses did not plead guilty straight away so that the police were put to the effort of preparing a partial brief, but that Ms Joses had no prior convictions, had done some work to address her problems and had had transitory possession of the drugs.
- Ms Joses told the Tribunal that after the police request to pull over but before stopping she was handed the drugs by the male passenger in the car, who asked her to help him by holding them for him as he was already in trouble with the police and that she held them for him.
- She said that on that night one of the officers took her aside and spoke to her about the choices she was making and the friends she was associating with and suggested she needed to choose to change her ways to ensure that her life was better in the future.
- Although this is the only incident comprising the applicant’s criminal history, Ms Joses disclosed, in the course of the application to the respondent, that at the time of the charges she had been using marijuana for about nine years on a ‘recreational basis’ most weekends, and methylamphetamine (only a few times) over a period of about four years.
- Following the conversation with the police officer, Ms Joses said she gave thought to her responsibilities, including her job, acknowledging that there had been occasions when she could not go to work as her body was not functioning properly due to her lifestyle at the time, and her health.
- Ms Joses gave evidence that she was in a bad place at the time of the offences, suffering from anxiety, depression, confusion and heartache, and associating with friends who were making bad choices. Ms Joses clearly found reliving this period of her life, whilst giving evidence in these proceedings, very distressing.
- Ms Joses reported that being pulled over by the police and then spoken to by the police officer was a wakeup call for her and caused her to endeavour to change herself completely. She moved back home with her parents and went on a family holiday during which, she acknowledged, she smoked tobacco and had a shot of gin daily. Upon returning from the holiday, and with her family’s support, she gave up smoking and started to focus on her health. She joined the gym with her mother and started running. At her mother’s suggestion she attended counselling weekly for about a month, dealing with issues including anger management, emotions and depression. Ms Joses said that after seeking advice from a doctor she gave up drugs and alcohol ‘cold turkey’ and pursued a healthy lifestyle.
- Since this time Ms Joses reports she has sought to fill her life with positive things. Ms Joses informed the Tribunal that she has attended mass almost daily for 3 years, has undertaken some bible studies, and has learnt about faith and has asked God for help and forgiveness. She sings in her church choir and participates in music events with the choir. She implemented a personal plan to refocus her life and to assist in her rehabilitation. This personal plan involved steps including taking care of her health, giving up alcohol for 3 years (which she may extend), giving up cigarettes, focusing on her studies and rekindling meaningful relationships. She no longer takes illicit drugs. At a recent environmental group gathering which she attended at a bar Ms Joses said she drank apple juice rather than alcohol.
- Ms Joses exercises at least 3 times a week, recognising the need for a healthy body, and is currently pursuing a longer term goal by undertaking a personal training course, prompted by an advertisement she saw at the gym she attends. In addition, Ms Joses reports she has removed herself from the friendship groups she had at the time of the charges and instead has focused on her studies. She has plans for her future including continuing with her studies with the intention of pursuing a career in personal training, a holiday in Singapore with her mother later this year and undertaking volunteer work.
- Ms Joses submitted that she is a different person to the one who offended and took drugs. She says that she is drug free and firm in her resolve not to relapse, removing herself from that scene, changing her friendship groups, as well as turning to exercise and to her faith to support this change in lifestyle.
- The applicant holds a Certificate III in Dental Assisting and has worked as a dental assistant for about 9 years, with some illnesses between employment. She indicated that there were occasions when her previous lifestyle impacted adversely on her ability to go to work, accepting that she behaved irresponsibly while holding such a responsible job.
- Ms Joses said that she understands the negative impacts of drugs on children and appreciates the respondents’ concerns about her behaviours. She acknowledged that some people use illicit substances as a coping mechanism and indicated that she would like people to stop using them and realise that there is more to life. She considers drugs a vice. In relation to strategies to abstain from drug use she noted that she no longer seeks out drugs or people who use them and feels she is successfully implementing her personal plan.
- Ms Joses reported that she is ashamed of her previous drug taking and criminal behaviour and considers that she has learnt from that experience and put it behind her. Having had to explain her past to people (including her employer) as a result of the negative notice from the respondent, Ms Joses recognises she needs to work to re-establish trust with people. She continues to live at home and has the support of her parents.
- Ms Joses did not provide the Tribunal with any independent evidence from a counsellor or psychologist regarding her suitability to work with children. A number of people in the applicant’s life gave character references and oral evidence in the proceedings.
- Father Vickers, her parish priest for the last 2 years, was aware of Ms Joses’ drug charges but was not aware of her previous drug use. He spoke well of the applicant and acknowledged her devotion to and involvement in the church, including various church activities such as the church choir, Legion of Mary and Scripture study. Father Vickers observed that Ms Joses realised the need to change the direction of her life and her behaviour and he has observed positive behavioural changes in Ms Joses over the time he has known her. He does not see the applicant outside of the church. Father Vickers indicated he does not have any concerns about Ms Joses holding a blue card.
- Mrs Feng is Ms Joses’ aunt and has known the applicant since her arrival in Australia from South Africa in 2000, aged about 11. She is the practice manager in the dental practice where Ms Joses worked for a 2 year period prior to 2010 and again from January to July 2018 and is married to Mr Feng, the dentist in that practice. Mrs Feng was unaware of the specific nature of the applicant’s criminal history and her prior use of illicit substances, but was aware that the applicant had ‘fallen out with the law’. Mrs Feng indicated she had observed the progress Ms Joses has made over the last few years in improving her education, pursuing a healthy lifestyle and changing her friendship groups. Mrs Feng expressed the view that she considered the applicant had previously made poor friendship choices. She expressed that she was very proud of Ms Joses for having achieved these changes. Mrs Feng spoke positively of Ms Joses’ interactions with children, in particular Mrs Feng’s own children. She indicated she held no concerns about Ms Joses being issued a blue card.
- Dr Urosevic, the applicant’s general practitioner for 7-8 years, acknowledged Ms Joses’ past drug use and considered that Ms Joses has made progress to change and to improve her life and her behaviour. He gave evidence that Ms Joses tested negative in drug screen tests conducted in March 2017 and February 2019. Dr Urosevic knows Ms Joses’ family and sometimes sees them professionally as a family group.
- The Tribunal accepts the evidence of these witnesses, whilst noting that neither Mrs Feng nor Father Vickers were aware of the applicant’s prior drug use and Mrs Feng was unaware of the specific nature of Ms Joses’ criminal history.
- In addition to these witnesses, a number of other references were provided to the Tribunal although the authors were not called to give evidence. A reference was provided from a previous employer, Dr Leinonen, a dentist for whom Ms Joses worked for 7 years. Although having no stated knowledge of the conviction or prior drug use he spoke positively of Ms Joses as a conscientious worker, who was friendly and competent with staff and patients, including children. That Ms Joses had given up alcohol, smoking and the use of illicit drugs was observed by Dr Beaton in a specialist report to Dr Urosevic dated 22 June 2018. A letter was provided to the Tribunal from Alex Newton of the Australian Institute of Personal Trainers confirming, amongst other things, that Ms Joses is presently undertaking a course Complete Personal Trainers Certificate 4 in Fitness. Mr Dexter Buchanan wrote a letter dated 10 March 2019, advising that he worked with Ms Joses while she completed the practical component of the personal training course she is undertaking. He observed her good attitude towards improving her knowledge of health and fitness. Louise Simento, the Scripture Course Facilitator, Brisbane East Deanery, provided a letter advising of particular bible studies the applicant has undertaken.
- The respondent acknowledged the significant turnaround by the applicant since the charges, but expressed concern that while the three witnesses who gave oral evidence were positive they were not all aware of Ms Joses’ criminal history or past drug use, that no independent medical report was provided to assist the Tribunal and there had been only a short period of abstinence from drug use following a long history of drug use.
- In undertaking this review and determining the correct and preferable decision the welfare and the best interests of a child are paramount.
- A blue card is transferable, allowing the holder to work in any child-related employment or conduct any child-related business regulated by the WWC Act. Thus, the Tribunal must take into account all possible work situations open to the applicant, not just the purpose for which a blue card is presently sought. Once issued a blue card is unconditional and fully transferable across all areas of regulated employment and business.
- In 2016 Ms Joses was convicted (for the purposes of the WWC Act) of the offences set out in paragraph  above, none of which are serious or disqualifying offences under the WWC Act. Drug use is relevant to employment that involves or may involve children given the negative impact drug misuse by adults may have on children’s own decision making, their overall wellbeing and their sense of security. Taking into account that Ms Joses did not plead guilty straight away, that Ms Joses had no prior convictions, had done some work to address her problems and had had transitory possession of the drugs, the sentencing Magistrate accepted the applicant’s guilty plea and imposed a fine, with no conviction recorded. No material was provided to the Tribunal as being material requested or received pursuant to ss 318, 319, 335, 337 or 338 of the WWC Act.
- The Court of Appeal has accepted the approach of considering relevant risk and protective matters in deciding whether a particular case is exceptional.
- There are a range of protective factors relevant to the applicant:
- (a)The convictions set out above are the only charges or convictions on Ms Joses’ criminal history and they arise essentially from the same set of facts;
- (b)She has changed friendship groups since the charges;
- (c)The applicant demonstrated insight into and remorse for the irresponsible nature of her past behaviour;
- (d)She is presently undertaking a course of study in personal training, to pursue her chosen career with the goal of helping others stay healthy;
- (e)She has good support networks including her parents, friends and the Catholic church;
- (f)She has found support in her faith and is involved in the Catholic church and church activities; and
- (g)Ms Joses has taken up exercise and is pursuing a healthy lifestyle, having given up illicit drugs, alcohol and smoking tobacco.
- The risk factors for the applicant are:
- (a)The convictions for drug offences in 2016;
- (b)Her admitted use of cannabis for a period of 9 years and methylamphetamine (a few times) over a period of 4 years prior to her arrest, thus her drug related offending is not reflective of her admitted use of illicit substances;
- (c)The period of abstinence from drug use; and
- (d)That a blue card, if issued, is fully transferrable across all areas of regulated employment and is unconditional.
- The Tribunal accepts that the offences noted are the only entries recorded on the applicant’s criminal history. The period of drug use prior to the charges is of concern. The applicant has not engaged in in any concerning or offending behaviour since the offending behaviour three and a half years ago. However the passage of time is not determinative of whether or not a case is an exceptional case. This risk factor must be considered in the context of all the relevant circumstances.
- In relation to the conviction the Tribunal notes the comments made by the sentencing Magistrate. Three years have now elapsed since these charges and the implementation of the significant changes in the applicant’s lifestyle. This has been achieved with determination, focus and family support. Ms Joses says she no longer takes drugs. This was supported by Dr Urosevic’s two drug tests and Dr Beaton’s report.
- Mrs Feng, Father Vickers and Dr Urosevic each attested to changes the applicant has made to her life style in the last few years, without appreciating all of the circumstances giving rise to the applicant’s decision to implement these changes. Ms Joses’ involvement in her church, the undertaking of bible studies, the focus on improving her health, the undertaking of a course in personal training to pursue her career goals and the changing of friendship groups are confirmed by the witnesses. The Tribunal accepts this evidence.
- The applicant did not provide a psychological report in support of her case. However, she was able to articulate positive factors in her life upon which she would rely to prevent a recurrence of her past behaviours and has successfully implemented a self-improvement plan to refocus her life.
- The respondent became aware of Ms Joses’ prior drug use because she told the respondent, admitting to conduct that was contrary to her interests and accepting responsibility for this conduct. Ms Joses presented as an honest and reliable witness, who sincerely regrets her prior drug use and wishes to move on from that past. The Tribunal finds the applicant to be a credible witness and accepts her evidence.
- The Tribunal finds that Ms Joses understands the negative impacts of illicit drugs on society, demonstrated remorse in relation to her past behaviours of concern and has demonstrated insight. She does not condone drug use. Whilst acknowledging the influence of past friendships on her behaviour, she took responsibility for changing her ways and seeks now to make a positive contribution to society.
- In the more than three years since the offending conduct occurred, Ms Joses has undertaken a dramatic turnaround in her life, confirmed by those who gave evidence in the course of this hearing. She is focused on her health, has given up drugs, started exercising, attends church regularly, participating in various church activities including bible studies and the choir, and is studying to pursue her chosen career path. Ms Joses has a strong desire to remain drug free. The Tribunal accepts that Ms Joses has demonstrated a high level of commitment to putting the past behind her, refocussing her life, setting longer term goals and forging a positive lifestyle with a good support network both within her family and in her faith. The Tribunal is of the view that the protective factors outweigh the risk factors.
- On balance, after consideration of all of the evidence, the findings of fact, weighing the risk and protective factors, and the relevant matters in the WWC Act, including s 226(2), in exercising its discretion the Tribunal considers, on the balance of probabilities, that this is not an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.
- The decision of the respondent that the applicant’s case is an exceptional one within the meaning of s 221(2) of the WWC Act is set aside, and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.
 WWC Act, s 221(2).
 WWC Act, s 169 definition.
 WWC Act, s 353 definition.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 33(3).
 WWC Act, s 353(a).
 QCAT Act, s 19(a).
 QCAT Act, s 20.
 QCAT Act, s 20.
 WWC Act, s 360.
 QCAT Act, s 24(1).
 WWC Act, s 5.
 WWC Act, s 6.
 Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard, 14 November 2000, p 4391.
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291, .
 Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492, .
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492, .
 Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28.
 Ex 1 BCS-44.
 Ex 1 BCS-5.
 Ex 1 BCS-31.
 Ex 3.
 Ex 6.
 WWC Act, s 360.
 Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492.
FMA v Chief Executive Officer, Public Safety Business Agency  QCAT 210, .
 Ex 1 BCS-44.
- Published Case Name:
Joses v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
Joses v Director-General, Department of Justice and Attorney-General
 QCAT 229
23 Aug 2019