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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
JKL v Director-General, Department of Justice and Attorney-General  QCAT 191
director-general, department of justice and attorney-general
29 May 2020
27 March 2020
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 charges – where applicant had inadequately treated mental illness at the time of alleged offending – where offences not categorised as serious or disqualifying 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, s 66, s 99(2)(a)
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 354, s 360, Schedule 7
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
Re TAA  QCST 11
APPEARANCES & REPRESENTATION:
C Juratowitch, Hub Community Legal
REASONS FOR DECISION
- JKL was issued with a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), on 17 July 2018. On 20 July 2018, the respondent was notified that this notice was issued based on wrong or incomplete information.
- The respondent undertook a reassessment and 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.
- At the time of reassessment by the respondent the applicant’s charges were unfinalised.
- Where a person has a charge for an offence other than a disqualifying 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.
- On 11 February 2019, the respondent advised of its decision to cancel the positive notice and blue card and issue a negative notice to JKL. The applicant 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.
- JKL is not a disqualified person and sought the review of the decision within the prescribed period.
The legislative framework
- The Tribunal is required to decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘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;
- (b) 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:
- (1)Subject to subsection (2), the chief executive must issue a positive notice to the person if—
- (a)the chief executive is not aware of any police information or disciplinary information about the person; or
- (b)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—
- (i)investigative information;
- (ii)disciplinary information;
- (iii)a charge for an offence other than a disqualifying offence;
- (iv)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).
- (c)the chief executive is aware of a conviction of the person for an offence other than a serious offence.
- (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.
- 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 a charge for an offence the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act. 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.’
- 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.
Consideration of s 226(2) of the WWC Act
- The matters listed in s 226(2) of the WWC Act must be considered by the Tribunal and are addressed below.
Whether the offence is a conviction or a charge
- The applicant has finalised charges of dangerous operation of a vehicle causing death or grievous bodily harm whilst excessively speeding and assaulting or obstructing a police officer, arising out of events which occurred on 24 February 2017.
- The police brief indicates that the applicant was driving his car on a stretch of road where the speed limit was 100km per hour. The other vehicle, occupied by two adults and a 20-month-old child, was travelling ahead of JKL in the same direction. Witnesses observed the applicant’s vehicle travelling at high speed and in a reckless manner, weaving between other vehicles, prior to its heavy impact with the other vehicle. Rescue personnel extracted the driver and passengers from the other vehicle and they were transported to hospital. The occupants of the vehicle survived but all were injured, with two of them sustaining injuries which constituted grievous bodily harm.
- The applicant sustained minor injuries and was transported to hospital where blood testing was negative for drugs and alcohol. While being treated and transported to hospital the applicant told the paramedic that he had been travelling at about 220km/hour. Later that night police spoke to the applicant requiring him to provide his name and address. He refused to speak. He had been observed talking with ambulance and medical officers prior to and after the police officer’s approach and had been medically cleared to speak with the police.
Whether the offence is a serious offence and, if it is whether it is a disqualifying offence
- The offences on the applicant’s criminal history are not serious or disqualifying offences under the WWC Act. However, Parliament intended that all offences on a person’s criminal history be able to be taken into account in assessing their eligibility to hold a blue card.
When the offence was committed or is alleged to have been committed
- The applicant’s alleged offending occurred in February 2017.
The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children
- The charges relate to allegations of driving dangerously at excessive speed, causing a two-vehicle collision. The applicant’s actions caused serious injuries to the occupants of the other vehicle, one of whom was a child.
- The applicant’s psychiatrist, PSY, said that JKL was psychiatrically unwell at the time of the incident. In October 2018, the Mental Health Court found the applicant to be of unsound mind at the time of the incident. The charges raise the concern that the applicant may be prone to engaging in concerning behaviours when his mental health issues are not adequately addressed and when he is not adequately treated and medicated.
- The material suggests the applicant’s condition has manifested in concerning behaviour, impacting upon his general functioning, level of insight and appreciation of appropriate behaviour, which are risk factors in assessing his eligibility to work unsupervised with children.
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
- The applicant was not convicted.
Any information about the person given to the chief executive under section 318 or 319
- No information was given under s 318 or s 319 of the WWC Act.
Any report about the person’s mental health given to the chief executive under section 335
- No information was given under s 335 of the WWC Act.
Any information about the person given to the chief executive under section 337 or 338
- No information was given under s 337 or s 338 of the WWC Act.
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
- Other factors relevant to the alleged offending reasonably considered to be relevant are discussed below.
The material and the evidence
- The applicant provided the Tribunal with a statement and his life story, a statement from his mother and reports from his treating psychiatrist. Oral submissions were made on his behalf.
- The respondent provided the Tribunal with its reasons for decision, a bundle of documents paginated BCS-1 to BCS-47 and documents obtained pursuant to notices to produce paginated NTP-1 to NTP-2570. The respondent had the opportunity to cross-examine JKL, his mother and his psychiatrist. The respondent made oral submissions.
- JKL, 36 years old, lives with his parents on their farm. Prior to the accident he was engaged in casual employment, but he has not worked in paid employment since the accident. He now receives a disability support pension. He also has an NDIS package which provides a support system for him including a psychiatrist, a psychologist, a support worker, a case manager, and his GP. Through this package he is also undertaking a numeracy and literacy course. At the time of the hearing this package was due for renewal. He spends his days helping his father on the farm and enjoys catching up with friends and family and going fishing. JKL said he would like to return to paid employment in the future.
- His parents became kinship carers for three of his father’s grandchildren in May 2018. The applicant said he had a good relationship with the grandchildren while they lived with his parents. He said he felt they had settled with his family and were doing well. When the applicant was issued with the negative notice the grandchildren were removed from JKL’s parents’ care and placed in foster care. JKL said he feels bad that the children could not stay because of him. JKL seeks a blue card so that both he and the grandchildren can reside with his parents.
- At the age of about 15, JKL was admitted to hospital where he stayed for several months. During this admission he was diagnosed with schizophrenia. Upon discharge he engaged with Child and Youth Mental Health Services and upon turning 18 with his GP, and other doctors.
- The material obtained pursuant to the notices to produce indicates that the applicant experienced periods of poor mental health and consulted with mental health services over the period 2012 to 2014. A report in this period indicates that JKL had limited insight into his mental health at the time and resisted taking prescribed medication. The authors of the various reports did not give evidence to the Tribunal. JKL’s recollection of this time is poor.
- JKL said he took medication prescribed for him up until about 12 months before the motor vehicle accident. He said he stopped taking it as he did not think he needed it anymore. He became increasingly unwell in February 2017. He said he thought the feeling would go away.
- Three days prior to the accident JKL was feeling unwell and called an ambulance to take him to hospital. He was admitted to a mental health unit as a voluntary patient. He did not want to stay in hospital so left the next day. He said he was given medication upon release and that he thinks he took it.
- His recollection of the accident and the events leading to it are limited. What he now tells is primarily what he recalls having since been told by others, including the paramedic who took him to hospital.
- However, he recalls that he was driving his car, trying to get back to the hospital when he had a serious motor vehicle accident. He was taken to hospital by ambulance. He was hospitalised under a treatment authority for about seven months and upon release in September 2017 resided at a community care unit for further rehabilitation and education for another seven months, until April 2018. Upon release he returned to live with his parents.
- On 4 October 2018, the Mental Health Court found him to be of unsound mind at the time of the offending behaviour. The charges were discontinued, and he was placed on a Forensic Order. He remained on a Forensic order at the time of the hearing.
- He understands that the purpose of the Forensic order is to ensure that he continues to take his medication and to allow his treating team to ensure that he is mentally well.
- JKL said that since the accident he:
- (a)Has regular treatment from his psychiatrist and from other professionals in his treating team;
- (b)Takes all his medication as prescribed and understands the need to continue to do so;
- (c)Is compliant in attending appointments as well as drug screening to ensure he is taking his medication as prescribed;
- (d)Has received counselling in relation to trauma surrounding the motor vehicle accident and anxiety;
- (e)Does not use illicit drugs. The material obtained pursuant to notices to produce records that the applicant told a treating medical officer some years ago that he used ice. While JKL said he recalled telling someone this he said he has never actually used it;
- (f)Drinks occasionally, limiting his consumption on any single occasion to one to two drinks;
- (g)Has learned coping skills and strategies, including mindfulness;
- (h)Has been educated about mental illness, including relapse prevention and recognising his early warning signs, and so is more educated about and aware of his mental illness;
- (i)Has fully participated in a wide range of programs to assist him to understand his mental illness and how to stay well; and
- (j)Is motivated to stay well and wishes to ensure that nothing like these events occurs again.
- JKL said he accepts that he has a mental illness and must take his medication (probably forever) and comply with the advice of his treating team. JKL said that he is currently well and does not have any symptoms. He said he and his family have been educated about his mental illness and know what to do if he becomes unwell, to ensure he obtains the necessary treatment. He personally understands the importance of seeking medical assistance as soon as he starts to feel unwell. JKL expressed remorse for the injuries he caused the people in the other motor vehicle.
- One of the conditions of his current Forensic Order is that JKL not drive unless approved by his psychiatrist. In January 2019, following a driving assessment with an occupational therapist and due to his mental health having been stable for an extended period, he was approved by his treating psychiatrist to drive. This is required to be reviewed regularly by his psychiatrist. He now drives on a regular basis but said he does not do so if he feels tired or unwell. Further, he said that if someone in his family or a member of his treating team told him that he was unwell and should not drive, he would not drive.
- MKL, JKL’s mother, said that she took JKL to the doctor when he was a teenager. He was hospitalised and she was told that he had a low IQ and was diagnosed with schizophrenia. He was prescribed medication which he took. She recalls the medication changing over the years.
- Her recollection of JKL’s medical treatment and history prior to the motor vehicle accident was poor. She reported that she had no further concerns for his mental health until February 2017. She had no recollection of JKL being hospitalised between his teenage years and 2017. Upon further questioning she suggested that perhaps he was not hospitalised but was receiving treatment. She recalls he consulted with a psychiatrist during this time when he felt his medication was not working. She accepted he experienced anxiety in about 2015.
- She recalls that she became concerned about JKL in February 2017 as he did not seem right. She observed changes in his behaviour but thought that he would get better.
- On 21 February JKL asked her to call an ambulance for him. When she did not immediately make the call, he asked to use her telephone and called the ambulance himself. He was admitted to the mental health unit. The next day when she went to visit him, he was not in the unit. She was told that he had gone out for a cigarette. MKL found him and he told her he did not wish to return to hospital. She told the hospital, collected his medication, and took him home. She does not understand why he was permitted to leave. At home she realised he was still unwell. A couple of days later he told her he was going back to hospital, grabbed the car keys and left. He had the motor vehicle accident while trying to take himself to hospital.
- MKL said she regrets not acting faster to stop him. She said that she did not know what was going on. She said that while JKL had experienced mental health issues in the past, JKL had never been unwell in this way before, she did not realise how unwell he was, and she was unprepared.
- She is now aware of the early warning signs indicating that JKL needs to obtain treatment for his mental health and would seek medical intervention should she become concerned for his mental health. She is aware of the importance of JKL continuing to take his medication as prescribed and would take steps to remedy this if she became aware that he stopped taking it.
- In her opinion, JKL is remorseful for the accident and does not want anything like that to happen again. She believes JKL knows not to, and would not, drive again when unwell. She believes JKL understands that he has a mental illness for which he must take medication and is motivated to take his medication and to do as his doctors advise. She spoke of JKL’s positive interactions with the grandchildren over the time that they were living at her home.
- Reports dated 28 November 2018 and 22 July 2019 were provided by PSY, who has been JKL’s treating psychiatrist since May 2018. PSY considers JKL an honest and reliable patient. He reported that JKL’s mental state has remained stable for a ‘significant period of time’ (since about May 2017), that he has demonstrated no early warning signs of relapse and is fully adherent to treatment recommendations.
- JKL has reported to him intense feelings of guilt and remorse regarding the motor vehicle accident and the injuries caused to the occupants of the other vehicle. He considers this a driving factor in JKL’s compliance with his medical regime. PSY described actions by JKL which he suggested indicated JKL’s awareness of the impact of his offending upon society. He observed that JKL’s alcohol use is minimal and is not considered a significant risk factor and that JKL has not returned a positive drug screen for illicit substances.
- He considers the current Forensic Order a protective factor as it ensures regular monitoring of JKL’s mental health, containment of risks, provides oversight of medications and allows intervention and treatment if required. PSY observed that JKL has been adherent to the conditions of the Forensic Order. He observed that since his mental health has been stable JKL ‘has been actively engaged in his recovery journey and adherent to all treatment recommendations’. In addition, there is a current Police and Ambulance Intervention plan in place.
- JKL has expressed to him repeatedly a strong desire to remain well. He observed that JKL’s supportive parents are ‘acutely aware of [JKL’s] early warning signs’ and know how to seek treatment for JKL if required.
- PSY advised that JKL ‘remains adherent with prescribed medications and suggested psycho-social intervention.’ JKL has engaged in the co-construction and periodic review of his Recovery plan which highlights early warning signs/triggers and strategies to manage emerging issues. He said early detection and intervention under the regime will change the course of any relapse. PSY reported that JKL is aware of the need to have the right mindset when he drives a motor vehicle.
- PSY recounted an event which occurred in January 2020. JKL drank an excessive amount of coffee following which he became aware that he was experiencing some of his early warning signs. He elected not to drive for 48 hours, sought advice, and adjusted his medication to address the symptoms. PSY said this was not a relapse but a response to the excessive amount of coffee JKL consumed. However, he said that this incident confirmed that the recovery and relapse plans were effective as the incident was, in his opinion, addressed in the optimal manner.
- He supports JKL’s application for a blue card.
- The respondent expressed concern that the applicant’s support network may fail as it did in 2017 and that the applicant’s current period of stability (which it says is one and a half years) is insufficient to enable the Tribunal to be satisfied that the applicant does not pose an unacceptable risk to children.
- 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.
- The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:
The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.
- While mental health issues do not preclude a person from obtaining a positive notice and blue card, the possibility that such issues can manifest if not effectively managed on an ongoing basis, and trigger further offending behaviour, is a risk factor when assessing a person’s eligibility to hold a blue card.
- The evidence indicates JKL experienced periods of mental health instability prior to the accident. MKL acknowledged she did not appreciate how unwell JKL was in 2017.
- JKL accepts his diagnosis. Since the 2017 accident and subsequent treatment he is aware of the need to be adherent to his treatment regime. Since that time support mechanisms have been established to enable the early identification of warning signs and prevent a relapse. JKL is aware of the early warning signs. In January, the applicant put into effect his recovery and relapse plan in a manner which his treating psychiatrist described as optimal, suggesting that JKL has insight into his condition and its early warning signs and the importance of adherence to treatment. His mother is an important part of his support network and understands the need for JKL to continue to take his medication and to be compliant with treatment and is aware of JKL’s early warning signs. The Tribunal accepts this evidence.
- The Tribunal finds that the applicant is remorseful for his offending behaviour and has developed insight into his illness, the need for him to continue to be adherent to the treatment regime and the impact of his failure to do so.
- The Tribunal accepts the evidence of PSY. He confirmed JKL’s adherence to his treatment regime, the stability of his mental health since about May 2017, and his continued commitment to staying well. He considers JKL’s risk of relapse to be managed and the applicant’s ability to manage this was evidenced by the steps he took in January.
- While the applicant and his family may not have been alert to the seriousness of the applicant’s mental health issues up to February 2017, he and his mother are now acutely aware of the need for the applicant to be adherent to his treatment regime.
- 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 Tribunal’s consideration:
- (a)The applicant has not engaged in in any concerning or offending behaviour since 2017. 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;
- (b)The applicant has been diagnosed with a mental illness, which he accepts, and which is now managed, and his mental health has been stable for over two and a half years;
- (c)JKL is engaged with his mental health treatment and is motivated to continue to be compliant with treatment;
- (d)The applicant is remorseful for his offending behaviour;
- (e)The applicant has insight into his mental illness and his behaviour of concern and its impact on the passengers in the vehicle and upon society;
- (f)JKL is aware of his early warning signs and has strategies in place to manage his mental health;
- (g)The applicant has in a place an effective support network, including his parents who are aware of the need to manage JKL’s medication, of his early warning signs and know how to seek treatment for JKL should it be required; and
- (h)The applicant has in place a range of preventative strategies to reduce the risk of further offending.
- The risk factors for the applicant are:
- (a)JKL’s conduct in February 2017;
- (b)The risk of relapse of JKL’s mental health issues; and
- (c)The effect of issuing a blue card is that the applicant is able to work in any child related employment or conduct and child related business regulated by the WWC Act, not just for the reasons JKL has sought the card. Conditions cannot be imposed on a blue card and once issued is unconditional and fully transferable across all areas of regulated employment and business.
- The Tribunal finds that on balance the protective factors outweigh the risk factors.
- 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.
- Pursuant to s 66 of the QCAT Act, the Tribunal may make non-publication orders. The Tribunal prohibits the publication of anything that may identify, or be likely to identify, the applicant or any proceeding of the Mental Health Court or Mental Health Review Tribunal.
- Accordingly, these reasons have been de-identified.
WWC Act, s 221(2).
WWC Act, s 169 (definition of ‘disqualified person’).
WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3) (‘QCAT Act’).
WWC Act, s 353(a).
QCAT Act, s 19(a).
Ibid, s 20.
WWC Act, s 360.
QCAT Act, s 24(1).
WWC Act, s 5.
Ibid, s 6.
As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh).
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.
Ex 1 and 2.
WWC Act, s 360.
 QCST 11, . See also Commissioner for Children and Young People and Child Guardian v Lister (No 2)  QCATA 87.
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492.
FMA v Chief Executive Officer, Public Safety Business Agency  QCAT 210, .
- Published Case Name:
JKL v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
JKL v Director-General, Department of Justice and Attorney-General
 QCAT 191
29 May 2020