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

 

[2020] QCAT 4

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

AS v Director-General, Department of Justice and Attorney General [2020] QCAT 4

PARTIES:

AS

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML132-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 January 2020

HEARING DATE:

6 December 2019

HEARD AT:

Mackay

DECISION OF:

Member Garner

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that AS’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced by the decision that there is no exceptional case in respect of AS.
  2. Publication of the name or identifying information of AS or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

CATCHWORDS:

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 – criminal history – charge of possessing dangerous drugs, supplying dangerous drugs, possess utensils or pipes etc that have been used – domestic violence order– where not categorised as serious offence 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)

Working with Children (Risk Management and Screening) Act 2000 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Commission for Children and Young People Bill 2000, Explanatory Notes

Briginshaw v Briginshaw & Anor (1938) 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
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
Commissioner for Young People v Storrs [2011] QCATA 28
Drinkwater v Commissioner for Children and Young Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186
People and Child Guardian [2010] QCAT 293
FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210
Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99
Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25
Re FAA [2006] QCST 15
Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

N. Rajapakse, In-house solicitor, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Director-General (the chief executive officer), Department of Justice and Attorney General (‘the Respondent’) that the case of AS (‘the Applicant’) was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    The Applicant is a 55 year old woman. She is the mother of five children. The two youngest children are school age and still live with her.
  3. [3]
    The Applicant seeks a blue card to complete a degree of Bachelor of Medical Imaging (radiography).
  4. [4]
    On 3 April 2018, the Applicant applied to the Respondent for a positive notice and blue card under the WWC Act.
  5. [5]
    The Applicant’s criminal history contains:
    1. (a)
      Convictions in 2015 for possessing dangerous drugs (2 charges), supplying dangerous drugs and possess utensils or pipes etc that have been used; and
    2. (b)
      Convictions in 2013 for possessing dangerous drugs (2 charges) and possess utensils or pipes etc for use.
  6. [6]
    The Respondent considered the Applicant’s application pursuant to ss 221(1) and (2) of the WWC Act having regard to the fact that the Applicant had been charged or convicted for an offence other than a serious offence.[1] The Respondent was satisfied that the Applicant’s case was an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[2] Accordingly, by letter dated 4 March 2019, the Respondent advised the Applicant of its decision to issue a negative notice.
  7. [7]
    The Applicant has applied to the Tribunal for a review of that decision.

Jurisdiction

  1. [8]
    A person who is not a ‘disqualified person’[3] may apply, within the prescribed 28-day time period, for a review of a chapter 8 reviewable decision,[4] which includes a decision as to whether or not there is an exceptional case for the person if, because of the decision, the Respondent issued a negative notice.[5]
  2. [9]
    The Applicant has satisfied the prerequisites to apply for the review because the Applicant is not a ‘disqualified person’ and the Applicant applied to the Tribunal for review within the prescribed 28-day time limit.[6]
  3. [10]
    Accordingly, the Tribunal has jurisdiction to decide the review pursuant to s 17(1) and s 18(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and s 354(1) of the WWC Act.
  4. [11]
    The decision under review is the decision of the Respondent as to whether or not there is an exceptional case for the Applicant, because that decision resulted in her being issued with the negative notice.[7]

The law

Law relating to review generally

  1. [12]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[8]
  2. [13]
    The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[9]
  3. [14]
    The purpose of the review is to produce the correct and preferable decision.[10]
  4. [15]
    The Tribunal must decide the review by way of a fresh hearing on the merits.[11]
  5. [16]
    The role of the Respondent is to assist the Tribunal to make its decision and includes providing the Tribunal with relevant information, documents and things.[12]

Law relating to blue cards specifically

  1. [17]
    The WWC Act effectively provides that where a person has been charged or convicted with an offence other than a serious offence,[13] a positive notice must be issued[14] unless the Respondent 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. In that case, a negative notice must be issued.[15]
  2. [18]
    The relevant test is set out in ss 221(1)(b)(iii), 221(1)(c) and 221(2) of the WWC Act.
  3. [19]
    Section 221 of the WWC Act relevantly provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if-
    1. the chief executive is not aware of any police information or disciplinary information about the person; or
    2. 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 –
      1. investigative information;
      2. disciplinary information;
      3. a charge for an offence other than a disqualifying offence;
      4. a charge for a disqualifying offence that has been dealt with other than by a conviction; or
    3. the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  2. (2)
    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.
  1. [20]
    The term ‘exceptional case’ used in s 221(2) of the WWC Act is not defined in the WWC Act.
  2. [21]
    The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford) defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.
  3. [22]
    Section 226 of the WWC Act requires that regard must be had to certain matters in deciding whether or not there is an exceptional case for a person who is known to have been convicted of, or charged with, an offence. Section 226 provides:
  1. (1)
    This section applies if the chief executive –
    1. is deciding whether or not there is an exceptional case for the person; and
    2. is aware that the person has been convicted of, or charged with, an offence.
  2. (2)
    The chief executive must have regard to the following -
    1. in relation to the commission, or alleged commission, of an offence by the person-
      1. whether it is a conviction or a charge;
      2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      3. when the offence was committed or is alleged to have been committed;
      4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      5. 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;
    1. any information about the person given to the chief executive under section 318 or 319;
    1. any report about the person’s mental health given to the chief executive under section 335;
    2. any information about the person given to the chief executive under section 337 or 338;
    3. 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.
  1. [23]
    ‘Conviction’ is defined by 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’.
  2. [24]
    The Tribunal cannot go beyond convictions and must accept them as they are.[16] The Tribunal cannot now, in relation to the offence, accept a different version of events in relation to the facts concerning the commission of the offence.[17]
  3. [25]
    Other matters may be considered in addition to those listed in s 226 of the WWC Act.[18]
  4. [26]
    Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to:[19]

... the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here, quite obviously, designed to protect: children.

  1. [27]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland, including through the screening of persons employed in particular employment or carrying on particular businesses.[20]
  2. [28]
    The Explanatory Notes to the Bill introducing the WWC Act make it clear that infringement on the rights of individuals may be necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.[21]
  3. [29]
    The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency set out the approach that should be taken by the Tribunal in a review of a decision of whether there is an exceptional case:[22]

‘Exceptional case’ is not defined in the WWC Act. What constitutes an exceptional case is a matter of fact and degree. It is settled law that it is a broad discretion considering the merits in each case. Hardship or prejudice suffered by an applicant is irrelevant. What amounts to an exceptional case ‘must take it out and beyond the ordinary circumstances reasonably expected to occur’. It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual special. The passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.

  1. [30]
    In relation to comparable legislation, in Chief Executive Officer, Department of Child Protection v Scott No.2, Buss J observed:[23]

The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account. Similarly, if a case is exceptional due to identified risk factors, any benefit which might be thought to flow to children by having access to the applicant’s knowledge, experience or flair in working with children is of no relevance.

  1. [31]
    The Tribunal should consider risk and protective factors when determining a review decision.[24]
  2. [32]
    The Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[25]
  3. [33]
    Neither party bears the onus in determining whether an exceptional case exists.[26]
  4. [34]
    The Tribunal must review a decision under the WWC Act under the principle that the welfare and best interests of a child are paramount.[27]

Matters required to be considered by section 226 of the WWC Act

Criminal history information given under section 318 of the WWC Act

  1. [35]
    The Applicant’s criminal history is as follows:
    1. (a)
      Four charges dated 11 March 2013 of possession of dangerous drugs (2 charges), possess utensils or pipes etc for use and producing dangerous drugs:
      1. It was alleged that on 18 December 2012, when the Applicant was 48 years of age, she produced three 40cm hydroponic cannabis plants and thirteen small cannabis plants. Further, it was alleged that she was in possession of 53.32 grams of cannabis leaves and drug-related utensils; and
      2. The Applicant was found guilty of the charges of possession of dangerous drugs (2 charges), possess utensils or pipes etc for use, however no conviction was recorded. She was ordered to pay $300.00 in recognisance, required to enter into a period of good behaviour for 4 months and required to enter into a drug diversion program, which she completed. The charge of producing dangerous drugs was dismissed.
    2. (b)
      One charge dated 24 November 2015 of possess tainted property and four charges dated 2 December 2015 of possessing dangerous drugs, producing dangerous drugs, supplying dangerous drugs and possess utensils or pipes etc that had been used:
      1. It was alleged that on 15 July 2015, when the Applicant was 51 years of age, police attended and executed a search warrant at the Applicant’s property. The Applicant was at the property but no other persons were present:
        1. In relation to one charge of possessing dangerous drugs, the Applicant stated that she had some cannabis and produced two clip seal bags containing cannabis which she said was for her personal use. Police also located a bucket containing three more clip seal bags containing cannabis and four vacuum packed bags containing cannabis. The Applicant told police that they were hers and that she vacuum packed them to keep them fresh. Police also located several containers that contained clip seal bags, vacuum sealed bags and loose seeds, which the Applicant confirmed she had collected over a period of time;
        2. In relation to one charge of possessing dangerous drugs, prior to police starting to search, the Applicant told police that she had four cannabis plants growing outside which she had grown for her personal use. They were located by police at the property;
        3. In relation to one charge of supplying dangerous drugs, the Applicant stated that the three clip seal bags containing cannabis weren’t hers and that they belonged to other people and that they had bought them for $100.00 each;
        4. In relation to one charge of possess utensils or pipes etc that had been used, the police located a set of digital scales which appeared to have traces of green plant material on it and the Applicant stated that the scales were used to weigh the cannabis that she then used for cooking; and
        5. In relation to the charge of possess tainted property, police also located a clip seal bag in the bucket which contained $3,450.00 in $50.00 denominations. The Applicant stated that the money was all hers and that it was left from a large amount she had taken out of the bank and she kept it in the bucket for no reason.
      2. The Applicant was found guilty of the charges of possessing dangerous drugs (2 charges), supplying dangerous drugs and possess utensils or pipes etc for use, however no conviction was recorded. The Applicant was placed on 12 months’ probation which she completed. The charge of possess tainted property was discharged as the prosecutor offered no evidence in relation to the charge and discontinued those proceedings.
  2. [36]
    None of the offences are a serious offence nor a disqualifying offence.[28]
  3. [37]
    The convictions of the respective offences are each a ‘conviction’ for the purposes of the WWC Act notwithstanding that no conviction was recorded.[29]
  4. [38]
    No evidence has been provided to the Tribunal regarding the Court’s reasons for imposing the respective penalties and decisions not to record a conviction.
  5. [39]
    The relevance of the offences to employment, or carrying on a business, that involves or may involve children is that children are at increased risk of physical and psychological harm by being cared for by a person who is involved with drugs. Persons under the influence of drugs may have impaired ability to provide a safe, protective and caring environment for children. There may be opportunity for children to access and use drugs which presents significant risk to their physical and mental health. Supplying drugs would negatively impact users and have a negative flow-on effect to other persons. Further, it models unsafe and unlawful behaviour.
  6. [40]
    Behaviour of that nature is inconsistent with the standard of behaviour required of a person entrusted with the care of children. It raises serious concerns about the Applicant’s ability to provide a protective environment for children and ensure their safety and wellbeing.

Sexual offender order information given under section 319 of the WWC Act

  1. [41]
    No information was requested or received pursuant to that section.

Mental health examination information given under section 335 of the WWC Act

  1. [42]
    No information was requested or received pursuant to that section.

Mental Health Court and Mental Health Review Tribunal information given under sections 337 or 338 of the WWC Act

  1. [43]
    No information was requested or received pursuant to those sections.

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

  1. [44]
    Additional matters which the Respondent considered particularly relevant include that the Applicant was a mature adult between 48 and 51 years at the time of the offending and that the Applicant engaged in repeated offending.

Materials provided by way of Notice to Produce

Material from the Magistrates Court

  1. [45]
    In response to a Notice to Produce, the Magistrates Court produced material which evidenced the following:
    1. (a)
      A Protection Order was made upon application by the Applicant’s former partner on 26 April 2018, which named the Applicant as the respondent and her former partner as the aggrieved. It was made on the basis that the Applicant entered his home without invitation and would not leave until he said he would call the police, approached his new partner at her premises, parked outside his home and his cousin’s home, entered his house yard when he was at work and rubbed an unknown substance on the house windows, delivered an ‘accusation letter’ to his home and his new partner’s home and took her son from her former partner’s home without discussion. The Protection Order is currently in force and is due to expire on 26 April 2020; and
    2. (b)
      A Protection Order was made upon application by police on 3 November 2011, which named the Applicant’s former partner as the Respondent and the Applicant as the aggrieved. It was made on the basis of domestic violence by the Applicant’s former partner against the Applicant during their 7 year relationship. The Protection Order expired on 3 November 2013.

Material from the Department of Child Safety, Youth and Women (‘DCSYW’)

  1. [46]
    In response to a Notice to Produce, the DCSYW advised the Tribunal that it did not hold any information in relation to the Applicant and no material was produced.

Witness evidence

The Applicant

  1. [47]
    The Applicant is a 55 year old woman. She is the mother of five children. The two youngest children are school age and still live with her.
  2. [48]
    The Applicant was issued with a positive notice and blue card under the WWC Act in 2009 and 2011.
  3. [49]
    At the time of the Applicant’s offending, she was in or recovering from an abusive relationship and was influenced by her abusive partner and associates in the use of illicit drugs.
  4. [50]
    The Protection Order was made in circumstances that she wished to protect her daughter due to serious concerns, on reasonable grounds, that her young daughter was at risk of sexual abuse by the son of the Applicant’s ex-partner’s new partner. The Applicant intended to deliver a letter to her ex-partner and his new partner which expressed her concern and desire for her daughter to be closely supervised at all times. Further, on one occasion when her ex-partner was not at home, she took her son from her ex-partner’s home and took him to a church service due to a misunderstanding that her ex-partner was aware of and agreeable to the arrangement. She also rubbed water on her ex-partner’s house and prayed for protection of her children. She said that the Protection Order was made at the request of her ex-partner by way of psychological abuse by him against her, in circumstances where police had previously made a Protection Order protecting the Applicant from her ex-partner. She did not oppose the Protection Order because she accepted that she attended her ex-partner’s home without his permission.
  5. [51]
    The Applicant acknowledges the significant risk that the use and supply of drugs would pose to children in her care.
  6. [52]
    She is very remorseful for her offending behaviour.
  7. [53]
    Since the offending, the Applicant has gained insight into her offending by attending domestic violence counselling, attendances with a psychologist and self-reflection as a result of her tertiary studies.
  8. [54]
    The Applicant has also made significant life changes which are protective against further offending and concerning behaviour. These include that she has ceased use and involvement with illicit drugs, she has not reoffended, she has ceased contact with persons involved with illicit drugs and she has developed new relationships which provide stable positive support including her church involvement. Further, she has demonstrated a sincere desire and determination to improve her socio-economic status, training and employment goals and positive modelling for her children by completing a Skills for Tertiary Education Preparatory Studies (‘STEPS’) program to obtain tertiary enrolment and two years of a Bachelor of Medical Imaging degree.

RC, the Applicant’s friend

  1. [55]
    RC has provided practical support to the Applicant and her children since about 2016 and acts in a grandfather role for her children. He observed that since 2017, the Applicant’s only significant social life is her commitment to attending church services and gatherings and monthly community dinners.
  2. [56]
    The Applicant’s involvement with her church is a positive support for her.
  3. [57]
    He is aware of her offending. The Applicant has always referred to her offending behaviour as foolish and regrettable.
  4. [58]
    He considers the Applicant to be a good mother and believes that she does not pose any risk to children.

CF, Senior University Lecturer & Head of Medical Imaging Course

  1. [59]
    CF confirmed that the Applicant has partly completed her Bachelor of Medical Imaging course. CF knows the Applicant through her studies.
  2. [60]
    CF had read the reasons for issue of the negative notice and was aware of the Applicant’s offending and the circumstances of the offending.
  3. [61]
    A positive notice and blue card is required to complete the Bachelor of Medical Imaging course to manage risk to clinical partners.
  4. [62]
    CF believes that, since the offending, the Applicant has ‘turned her life around’ by changing her social group, having counselling and being closely involved with her church in addition to undertaking her tertiary studies.

CR, the Applicant’s friend

  1. [63]
    CR has known the Applicant since 2009.
  2. [64]
    CR was aware of the Applicant’s offending and the circumstances of the offending.
  3. [65]
    CR believes that the Applicant acknowledges and regrets her ‘mistakes’ and has learnt and grown from them.
  4. [66]
    Since the offending, the Applicant has effectively ‘turned her life around’ by being closely involved with her church and completing the STEPS program and two years of her Bachelor of Medical Imaging course, avoiding drugs and changing her social life.

FC, the Applicant’s friend, Justice of the Peace, serving church member

  1. [67]
    FC has known the Applicant and her children since they first started attending church in 2017.
  2. [68]
    FC is aware of the Applicant’s offending and the reasons for issue of the negative notice.
  3. [69]
    FC said that the Applicant has been a dedicated church member and church volunteer and has demonstrated strong Christian morals and ethics and a positive parenting style.
  4. [70]
    The Applicant has an open and honest relationship with FC, pastors and others within the church community and can rely on them to provide strong positive support.

WZ, the Applicant’s employer

  1. [71]
    WZ has known the Applicant since 2018 although the Applicant commenced employment with the business in 2017.
  2. [72]
    WZ is aware of the reasons for issue of the negative notice and the Applicant’s offending.
  3. [73]
    WZ believes that the Applicant’s circumstances at the time of the offending are different to her present circumstances.
  4. [74]
    WZ said that the Applicant has demonstrated that she is a valuable employee, trustworthy, reliable, caring, considerate, a team player and has a high level of focus. She considers the Applicant to be stable.

BG, Church Pastor

  1. [75]
    BG has known the Applicant for over two years since she has been attending church with her children.
  2. [76]
    BG is aware of the reasons for issue of the negative notice and the Applicant’s offending and the circumstances of the Applicant’s offending.
  3. [77]
    BG said that since her offending, the Applicant has really made an effort to forge a new positive life. BG described the Applicant as ‘pretty broken’ when she first started attending church. BG said that the Applicant had sought healing and positive changes through prayer, counselling and church services. He believes that the Applicant has exercised forgiveness in relation to her ex-partner and does not demonstrate anger or bitterness towards him.
  4. [78]
    BG believes that the Applicant has demonstrated a genuine commitment to the church and church community through regular and frequent church attendance, volunteering and involvement in church groups.

Dr P, Clinical and Forensic Psychologist

  1. [79]
    Dr P has interviewed the Applicant on three occasions in April and June 2019. The Applicant was originally referred to Dr P for treatment of depression. When Dr P did not find any evidence of depression, Dr P proceeded to interview the Applicant about her background and to conduct a forensic assessment of risk in relation to issue of a positive notice and blue card.
  2. [80]
    Dr P is aware of the reasons for issue of the negative notice, the Applicant’s offending and the circumstances of the offending including the Applicant being the subject of domestic violence.
  3. [81]
    Dr P said that the Applicant recognises that her offending was foolish and regrets the effect of her offending on her family and children. Dr P observed that the Applicant is able to articulate the reasons for her offending including poor self-confidence, poor self-esteem and a lack of assertiveness and a tendency to subjugate herself in intimate relationships in the context of a domestic violence relationship.
  4. [82]
    Dr P noted that risk factors relevant to the Applicant were her previous criminal history of criminal charges of drug possession and production and her history of domestic violence and subjugating herself to the wishes of her intimate partners.
  5. [83]
    Dr P noted that protective factors relevant to the Applicant were a time limited history of offending, she no longer uses drugs nor associates with any person who does, she no longer has contact with anyone in her previous social group in which her offending occurred, she does not endorse a criminal lifestyle nor hold pro-criminal attitudes, she successfully completed her probation, she demonstrated commitment to improve her education by successfully undertaking a STEPS program and almost two years of a Bachelor of Medical Imaging, she has good family support and she has undergone counselling for domestic violence.
  6. [84]
    Dr P noted that the Applicant participated in a drug diversion program after the 2013 drug offending but the Applicant nevertheless engaged in the 2015 drug offending. Dr P said that at the time of the 2015 drug offending the Applicant did not have the positive changes and supports that are now in place.
  7. [85]
    Dr P stated that the Applicant appears to have made significant positive changes to her lifestyle over the last four years since her offending including undertaking counselling for domestic violence, undertaking tertiary education, embracing Christianity and changing her social group.
  8. [86]
    Dr P said that she is satisfied that the Applicant’s current circumstances now adequately mitigate risk of further offending or concerning behaviour.
  9. [87]
    Dr P assessed the Applicant as now presenting a low risk of being involved with illicit drugs.
  10. [88]
    Dr P does not believe that the Applicant poses a risk to children.

Respondent’s submissions

  1. [89]
    The Respondent identified the following risk factors relevant to the Applicant:
    1. (a)
      The Applicant’s drug-related offending between 2012 and 2015, including offences of possessing dangerous drugs, producing dangerous drugs, supplying dangerous drugs and possess utensils or pipes etc that had been used raises concerns about her ability to provide a protective environment, to care for, to act protectively and to promote the best interests of children in her care;
    2. (b)
      The repeated nature of the drug-related offending suggests that the Applicant may not have addressed underlying triggers to her offending behaviours;
    3. (c)
      At the time of the offending, the Applicant was a mature woman between the age of 48 and 51 years and it could not be said that youth or immaturity contributed to her offending behaviour;
    4. (d)
      The Applicant lacks insight into the impact of her drug-related offending on children;
    5. (e)
      The current Protection Order indicates that the Applicant engaged in domestic violence towards her former partner and in the presence of their child as recently as 2018. Further, the repeated nature of some of the behaviours suggest that the Applicant may not have appropriate skills and strategies to manage conflict; and
    6. (f)
      Because of the unconditional and fully-transferrable nature of a blue card, the effect of issuing a positive notice and blue card to the Applicant would mean that she could work in any child-related employment or conduct any child-related business under the WWC Act.
  2. [90]
    The Respondent identified the following protective factors:
    1. (a)
      The Applicant has engaged in counselling in relation to domestic violence with her general practitioner, a local domestic violence resource service and a clinical and forensic psychologist, Dr P;
    2. (b)
      The Applicant has completed a STEPS program and commenced a Bachelor of Medical Imaging;
    3. (c)
      The Applicant has stated that she is no longer using illicit drugs and has changed her support and social networks; and
    4. (d)
      The Applicant has a support network.
  3. [91]
    The Respondent submitted that a precautionary approach should be adopted by the Tribunal even though the Applicant’s criminal offending was not directly child-related.
  4. [92]
    Further, the Respondent submitted that the Tribunal must consider the transferability of notices under the WWC Act when having regard to the best interests of children.
  5. [93]
    The Respondent submitted the Tribunal should confirm that the risk factors identified rendered the Applicant’s case an ‘exceptional case’ in which it would not be in the best interests of children for a positive notice to issue.

Applicant’s submissions

  1. [94]
    In relation to the risk factors identified by the Respondent, the Applicant submitted that:
    1. (a)
      The period of over three years, which has now passed, since the offending behaviour which gave rise to the Applicant’s convictions is sufficient to demonstrate that the Applicant has adequately dealt with the triggers for her offending behaviour and no longer presents a risk to children. In that period of time, the Applicant has abstained from any involvement with drugs and has abstained from social interactions with people involved with drugs.
    2. (b)
      None of the Applicant’s offending directly involved behaviour against children;
    3. (c)
      The Applicant acknowledges that she should not have used illicit drugs.
    4. (d)
      At the time of the Applicant’s offending, she was in an abusive relationship and she was influenced by her abusive partner and associates in the use of illicit drugs. That risk has now been ameliorated by the Applicant no longer being in the relationship and no longer having involvement with persons involved with drugs. This has been supported by professional counselling and support services including by her general practitioner, a local domestic violence resource service and a clinical and forensic psychologist, Dr P;
    5. (e)
      The Applicant has acknowledged that the use and supply of drugs would pose a significant risk to children placed in her care, however she has relied on subsequent reflection through domestic violence counselling and her tertiary studies and she has made a number of significant changes in her lifestyle to ameliorate the risk;
    6. (f)
      The Applicant has sought professional treatment in relation to drug use, ceased use of illicit drugs, is no longer involved in the supply or production of drugs and has ceased social interaction with persons who are involved with drugs; and
    7. (g)
      Dr P and the Applicant’s other witnesses are of the opinion that the Applicant does not present a risk to children placed in her care.
  2. [95]
    In relation to the protective factors, the Applicant submitted that:
    1. (a)
      The Applicant now has no contact with persons who are involved with drugs;
    2. (b)
      The Applicant has removed herself from the domestic violence relationship with her former partner;
    3. (c)
      The Applicant has engaged with a new circle of supportive friends which means that she has no reason to contact or return to the society of persons she was engaged with at the time of the offending;
    4. (d)
      The Applicant has relationships with friends and family which are stable, supportive and protective;
    5. (e)
      The Applicant obtained professional counselling in relation to domestic violence and her offending;
    6. (f)
      The Applicant has insight into her offending behaviour and acknowledges that it does not reflect norms expected by society;
    7. (g)
      The Applicant has demonstrated insight into the risks that her offending behaviour posed to children;
    8. (h)
      The Applicant has great remorse about the offending behaviour;
    9. (i)
      The Applicant desires and is willing to avoid reoffending;
    10. (j)
      The Applicant has completed the STEPS program and partially completed tertiary studies; and
    11. (k)
      The Applicant has demonstrated a sincere desire to improve her social-economic status, modelling for her children and achieve her training and employment goals.
  3. [96]
    The Applicant submits that the various risk factors do not outweigh the protective factors such as to render the Applicant’s case an ‘exceptional case’. The Applicant submits that the decision of the Respondent should be set aside.

Consideration of the evidence and findings of fact

  1. [97]
    All witnesses presented as open and sincere.
  2. [98]
    The Applicant’s evidence is largely supported by evidence of other witnesses and documentary evidence.
  3. [99]
    All witnesses demonstrated an understanding, to varying degrees, of the reasons for issue of the negative decision including the Applicant’s offending.
  4. [100]
    On that basis, the Tribunal accepts the evidence of all witnesses.
  5. [101]
    On the basis of the evidence, the Tribunal makes the following findings of fact:
    1. (a)
      The Applicant’s criminal history is as outlined above;
    2. (b)
      The Applicant is genuinely remorseful for her offending behaviour;
    3. (c)
      The Applicant has genuine insight into her offending behaviour including triggers;
    4. (d)
      The Applicant understands that her offending behaviour presents a risk to children and is not suitable for a person responsible for the care of children;
    5. (e)
      The Applicant has not engaged in further offending;
    6. (f)
      The Applicant no longer uses or is involved with drugs and no longer associates with any person who does; and
    7. (g)
      The Applicant has demonstrated a real commitment to and has achieved other positive changes to her life including:
      1. Undertaken domestic violence counselling;
      2. Maintained ongoing employment with a supportive employer;
      3. Completed the STEPS program;
      4. Completed two years of a Bachelor in Medical Imaging;
      5. Commitment to her church and church community; and
      6. Established positive social supports.

Consideration of the law and facts relevant to this case

  1. [102]
    The Tribunal is required to determine whether an exceptional case now exists in respect of the Applicant.
  2. [103]
    As required, the Tribunal has considered the matters set out in s 226(2) of the WWC Act relevant to this case (which are detailed above) in deciding whether an ‘exceptional case’ exists.
  3. [104]
    The Tribunal has also considered the submissions on behalf of the Applicant and Respondent respectively concerning relevant risk factors and protective factors.
  4. [105]
    In the context of the Applicant’s circumstances and offending, the Tribunal places little weight on the Protection Order which named the Applicant as respondent and her former partner as aggrieved. There is no other evidence which supports a finding that the Applicant presents a physical risk to other persons through aggression or violence.
  5. [106]
    The Tribunal accepts that the Applicant was not charged with nor convicted of a serious offence nor a disqualifying offence.[30]
  6. [107]
    However, the Applicant’s criminal history includes charges in 2013 for possessing dangerous drugs (2 charges) and possess utensils or pipes etc for use. The Applicant was found guilty of the charges however no conviction was recorded. She was ordered to pay $300.00 in recognisance, required to enter into a period of good behaviour for 4 months and required to enter into a drug diversion program, which she completed. A further charge of producing dangerous drugs was dismissed.
  7. [108]
    The Applicant’s criminal history also includes further charges in 2015 for possessing dangerous drugs (2 charges), supplying dangerous drugs and possess utensils or pipes etc that have been used. The Applicant was found guilty of the charges however no conviction was recorded. The Applicant was placed on 12 months’ probation which she completed. A further charge of possess tainted property was discharged as the prosecutor offered no evidence in relation to the charge and discontinued those proceedings.
  8. [109]
    For the reasons outlined above, the offending behaviour raises serious concerns about the Applicant’s ability to provide a protective environment for children and ensure their safety and wellbeing. It is inconsistent with the standard of behaviour required of a person entrusted with the care of children.
  9. [110]
    The repeated nature of the Applicant’s offending behaviour, despite her participating in a drug diversion program, is of particular concern because it may indicate that the Applicant has difficulty in addressing the underlying causes and risk factors.
  10. [111]
    The Tribunal accepts that the Applicant has not engaged in any further offending or concerning behaviour for approximately four and a half years since the offending behaviour on 15 July 2015.
  11. [112]
    However, the passage of time alone is not determinative of whether or not a case is an exceptional case[31] and is necessary to consider this risk factor in the context of all the relevant circumstances.
  12. [113]
    The Tribunal finds the evidence of Dr P to be particularly persuasive because it is a risk assessment conducted by a clinical and forensic psychologist which appears to address the identified risk in a considered manner. Further, its factual basis is consistent with the evidence of the Applicant and other witnesses which the Tribunal accepts.
  13. [114]
    On that basis, the Tribunal accepts that risk is currently mitigated by several factors.
  14. [115]
    Firstly, the offending behaviour occurred in the context of the Applicant’s history of domestic violence and her tendency to subjugate herself to the wishes of her intimate partners. This is currently not a significant risk factor because the Applicant is no longer in the domestic violence relationship, no longer associates with persons who are involved with drugs, no longer uses drugs and has completed domestic violence counselling.
  15. [116]
    Secondly, the Applicant has demonstrated genuine remorse for her offending and regret for the effect of her offending on her family and children.
  16. [117]
    Thirdly, the Applicant has demonstrated genuine insight into the triggers and risk factors for her offending. The Applicant is able to articulate the reasons for her offending including poor self-confidence, poor self-esteem and a lack of assertiveness and a tendency to subjugate herself in intimate relationships in the context of a domestic violence relationship. She has developed this insight, at least in part, through professional domestic violence counselling and self-reflection as a result of her tertiary studies.
  17. [118]
    Thirdly, the Applicant has demonstrated genuine insight into the risk that her offending behaviour presents to children and that it is not suitable for a person responsible for the care of children.
  18. [119]
    Fourthly, several protective factors now exist as a result of the Applicant making positive changes to her life which include completing the STEPS program and completing two years of a Bachelor in Medical Imaging. The Applicant has also successfully maintained ongoing employment with a supportive employer. The Applicant has demonstrated a commitment to improve her socio-economic status which is likely to be protective against further offending.
  19. [120]
    Fifthly, an additional protective factor is that the Applicant has established positive stable supports including her church, church community, friends and family which are also likely to be protective against further offending.
  20. [121]
    The Applicant has demonstrated a genuine commitment and determination to make positive changes to her life which have been successful in ameliorating the risk of further offending. The Applicant’s insight and circumstances are now very different to that at the time of her offending.
  21. [122]
    On that basis, the Tribunal is satisfied that the Applicant now presents a low risk of reoffending.

Conclusion

  1. [123]
    Having regard to the evidence and various matters set out above, the Tribunal is satisfied, on the balance of probabilities, that there is not a real and appreciable risk that the Applicant would harm children whilst employed or undertaking volunteer work.
  2. [124]
    The Tribunal is not satisfied, on the balance of probabilities, that it would not be in the best interests of children for the Respondent to issue a positive notice.
  3. [125]
    Accordingly, the Tribunal is not satisfied that the Applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act.
  4. [126]
    The Tribunal orders that the decision of the Respondent that the Applicant’s case is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act is set aside and replaced by the decision that there is no ‘exceptional case’ in respect of the Applicant.

Non-publication

  1. [127]
    The Tribunal orders that publication of the name or identifying information of the Applicant, or any person associated with her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the QCAT Act.
  2. [128]
    Accordingly, these reasons are published in a de-identified format.

Footnotes

[1]Defined in s 167, WWC Act.

[2]Section 221(2), WWC Act.

[3]Defined in s 169, WWC Act.

[4]Section 354(1), WWC Act.

[5]Section 353, WWC Act, definitions of ‘prescribed period’ and ‘chapter 8 reviewable decision’.

[6]Section 33(3), QCAT Act.

[7]Section 353, WWC Act, definition of ‘chapter 8 reviewable decision’; s 354, WWC Act.

[8]Section 19(a), QCAT Act.

[9]Section 19(c), QCAT Act.

[10]Section 20(1), QCAT Act.

[11]Section 20(2), QCAT Act.

[12]Section 21, QCAT Act.

[13]Defined in s 167, WWC Act.

[14]Section 221(1), WWC Act.

[15]Section 221(2), WWC Act.

[16]Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257, [37].

[17]Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

[18]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].

[19]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]; see also Re FAA [2006] QCST 15, [22].

[20]Section 5(b), WWC Act.

[21]  Commission for Children and Young People Bill 2000, Explanatory Notes, [10].

[22]  FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[23]  (2008) WASCA 171, [109].

[24]  Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [28].

[25]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing with authority the test prescribed in Briginshaw v Briginshaw & Anor; (1938) CLR 336.

[26]Commissioner for Young People v Storrs [2011] QCATA 28, [17].

[27]Section 360, WWC Act.

[28]As those terms are defined by ss 167 and 168, WWC Act.

[29]Schedule 7, WWC Act, definition of ‘conviction’.

[30]As those terms are defined by ss 167 and 168, WWC Act.

[31]FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QCAT 4

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    07 Jan 2020

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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