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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
PRH v Director-General, Department of Justice and Attorney-General  QCAT 331
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
17 August 2020
10 August 2020
Professor Ashman, Member
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where Applicant has been convicted of serious offences – sentences suspended – where the Applicant sought the cancellation of a negative notice – where the decision of the Respondent was set aside and replaced with a decision that there is no exceptional case.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 226(2)
Human Rights Act 2019 (Qld), s, 26(2), s. 58.
Commissioner for Children and Young People and Child Guardian v Ram  QCATA 27
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
D Taylor for the Department of Justice and Attorney-General
REASONS FOR DECISION
- On 30 May 2018, the applicant applied for the issue of a blue card to enable her to volunteer at a number of community service organisations. The organisations required those participating in service delivery to hold blue cards. On review of the application, Blue Card Services acquired information that the applicant had been convicted of serious offences as set out in the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’). On 9 August 2019, the Director, Blue Card Services rejected the application.
- On 5 September 2019, the applicant sought the reconsideration of the negative notice issued under the Act to enable further consideration of her eligibility for a blue card. She filed an application at the Tribunal seeking a review of the Director’s decision.
- The purpose of the Tribunal’s review is to consider whether the applicant’s history and current circumstances constitute an exceptional case and to produce the correct and preferable decision. In undertaking the review, the Tribunal may confirm or amend the Director’s decision, set it aside and substitute its own decision, or set it aside and return it to the Director-General, Department of Justice and Attorney-General for reconsideration.
- The Act does not define the term ‘exceptional case’. Whether a case is exceptional is determined by considering the circumstances of the case, having regard to the legislative intention of the Act. In the course of this review, the Tribunal must consider the totality of the applicant’s circumstances. The decision must be consistent with the Act’s objects that include promoting and protecting the rights, interests, and wellbeing of children in Queensland and in accord with the principle that the welfare and best interests of a child are paramount.
- Blue cards are given without condition so if the applicant were to be issued with a blue card, she could work—under supervision or not—in any area of child-related employment.
- In summary, in determining the correct and preferable decision, the Tribunal needs to be satisfied on the balance of probabilities that an exceptional case does or does not exist. Any prejudice or hardship that the applicant might have experienced—or would experience—by not holding a blue card, is irrelevant when considering the case. In addition, it is irrelevant whether children might derive some benefit by interacting with, or having access to, her.
- I will begin by outlining the written and oral submissions of the Director, Blue Card Services, then the applicant’s written and oral submissions. Following that I will summarise the evidence given by witnesses who appeared at the hearing and any additional references provided. Finally, I will outline the reasons for the Tribunal’s decision.
The Director-General’s written submissions
- As is typical, the bundle of documents provided by the Director, Blue Card Services in support of her decision is wide-ranging. The bundle includes, but is not limited to: a statement of reasons outlining the basis of her decision; a copy of the applicant’s blue card application; Victoria Police reports relating to charges and convictions; the applicant’s Vocational Education and Training records; a summary of the applicant’s oral submissions made on 3 October 2018 to Blue Card Services; and several references supporting the applicant’s application. Following Tribunal directions, the Director provided a set of documents from Recovery Support Services relating to the applicant’s period of involvement with that service.
- The Director’s reasons for her determination of the exceptional case were largely located in the applicant’s charges and convictions in Victoria from 2011 to 2014. In brief, these include: armed robbery and attempted armed robbery (June and August 2011; struck out and withdrawn); possessing an open liquor container and property suspected to be the proceeds of crime (August 2011, adjourned to 2012); armed robbery, attempted armed robbery (October 2011, 12 to 24 months imprisonment suspended, sentences served concurrently); dealing with property suspected of being the proceeds of crime, open liquor container in a rail vehicle (February 2012, bond and undertaking); theft from a motor vehicle (March 2014, struck out and withdrawn); dealing with stolen goods, possession of a controlled weapon, motor vehicle offences, and theft from a shop (August 2014, 100 hours of unpaid community work).
- Following her review of the application and relevant material, the Director noted seven reasons for her decision, which I summarise below.
- (a)The Director emphasises the seriousness of the charges and convictions and refers to a section of a 2014 Appeals Tribunal decision about which she writes, “the proper inference to draw must be that it would harm the best interest of children for persons with convictions for a serious offence to work with children unless it is an exceptional case” [original emphases]. She considers the applicant’s armed robbery offences demonstrate complete disregard for the safety of others by placing the victims at risk of injury or contracting a blood transmissible disease via a needle stick. Such behaviour reflects the applicant’s poor decision-making and recklessness that could place children at risk. Furthermore, the Director refers to an Appeals Tribunal decision, which confirmed that simply living in a law-abiding manner is not exceptional.
- (b)It is noted that the applicant has no record of drug offences but admitted that the offences occurred at times when she was addicted to heroin, affected by mental health issues, and at a “very low point in her life.” The Director opined that a relapse into drug offending would “likely detract from her ability to provide a protective environment for children placed in her care.”
- (c)The Director draws attention to the applicant’s rehabilitation and further studies, but also notes that the six months of positive progress in rehabilitation in 2011 did not prevent a relapse into drug use, homelessness, and mental health issues in 2014. She comments that in the applicant’s submissions to Blue Card Services, she did not address any strategies that she may have acquired to address the triggers of her offending and drug misuse, thus, the Director has no confidence in the applicant’s ability to avoid re-offending.
- (d)Only one of the four references provided in support of the applicant’s application acknowledged the referees’ awareness of her criminal history. The referee who did attest to the applicant’s participation in a residential rehabilitation program, her sobriety, the aberration in character that led to the offending, and remorse were taken to be protective factors in the applicant’s favour.
- (e)The Director considered the applicant’s stated remorse, guilt, and shame about her earlier behaviour and insight into the impact of her offending on others and acknowledged these as protective factors. Nevertheless, the applicant’s intention to give back to the community through volunteering or a career in social work was no more than might be expected from a law-abiding citizen, as noted in (a) above.
- (f)The Director concluded by expressing concern about the full transferability of a blue card to any child-related regulated employment or business, not just for the purpose for which the applicant sought the card.
- Based upon the information available, the Director determined that the issue of a blue card was not in the best interest of children and young people at this time.
- The Tribunal notes that the applicant provided a statement to the Director dated 3 October 2019 along with two references, one from the Clinical Manager of a rehabilitation service and one from a friend. These documents did not alter the Director’s decision.
- The Department’s legal representative provided an additional written document dated 5 August 2020 during an adjournment of the hearing. Entitled ‘Respondent’s Outline of Submissions’, that document rehearses at length relevant parts of the Act and the Human Rights Act 2019 (Qld), outlines the Tribunal’s responsibilities when considering the matter of an exceptional case, and summarises the charges against the applicant. This accounted for approximately three-quarters of the 19-page document. The remainder deals with the substance of the Director’s reasons for denying the applicant a blue card as outlined above, with some additional comments.
- The submission challenges the applicant’s contention that she would never cause harm to a child. The Department submits that the applicant’s statement is contrary to police notes concerning events during the armed robbery and consequently reflects the applicant’s lack of insight into her offending. The Director also draws attention to the applicant’s rehabilitation, stating that rehabilitation alone is not sufficient for the issue of a blue card and cites the Commissioner for Children and Young People and Child Guardian v Ram  QCATA 27. Therein, the Appeal Tribunal was not satisfied that Mr Ram showed insight into how his previous violence and disregard affected others. While acknowledging the applicant’s rehabilitation and further studies, the Director submits that there remains a question about whether the applicant’s case is exceptional.
- The submission also repeated concerns over the transferability of the blue card.
- The Tribunal now turns its attention to the applicant’s submissions.
The applicant’s written and oral submissions
- The application for a review of the Director-General’s decision contains the Director’s Reasons, a second reference from the Clinical Manager of the rehabilitation service, one from the General Manager of a disability organisation and another from the Director of the undergraduate Social Work program at Griffith University. Additional documents were lodged following the Tribunal’s directions. These include a personal history that described the applicant’s early life and a further document that dealt with the circumstances related to her drug use and offences. There are three additional references: from a close friend; another from the Director of the Griffith University program; and one from a counsellor/social worker at a sexual violence centre.
- There is little point here in detailing the applicant’s life history. It is sufficient to say that there was considerable family disruption when she was a child and she was the subject of abusive behaviour at school. As an adult, her partner of about two years died as a result of a drug overdose. Then followed periods of employment and drug dependence when she was involved in the armed robbery, then rehabilitation, and further employment. She returned to drugs and was again involved with the criminal justice system. This, she says, led to a turning point in her life including a period in a residential rehabilitation program, re-connection with family members, and further studies at TAFE and university. She was issued and still holds a card verifying her ability to work with children via a Victorian Working with Children Check. She now reports a strong support network of family and friends and a long-term relationship that she anticipates will lead to marriage.
- In her opening statement, the applicant expanded on the events that occurred around the period when the offences occurred. She reiterated that she had no clear recollection of the armed robbery incident.
- Several times while giving evidence the applicant stated that she was ashamed of her behaviour. It was out of character and associated with a lengthy period in which she was involved in drug and alcohol use, overlaid with mental health issues that related back to her childhood and teenage years when she had little family support and primarily mixed with other drug dependent individuals. The applicant said that the period 2011 to 2013 when she was engaged in rehabilitation could not accurately be said to be a relapse as many of the mental health and drug-related issues were still active and not the focus of the therapeutic relationships. The life issues had not been properly resolved as she was still using alcohol and largely homeless.
- The applicant explained the rehabilitation and therapy process that followed the 2013 charges. She spent 10 to 12 weeks in a refuge, and then joined Narcotics Anonymous while at the same time participating in a residential treatment process. At around this time she began a therapeutic counselling relationship with B, which has continued up to the present time. She elaborated on the various treatment programs that have addressed abuse, attachment issues, trauma, and challenging negative thought processes. She explained that the skills and processes that she has learned have been effective in dealing with stressful events in her life and that she contacts family, friends, and professionals to talk over troubling issues and ways to deal with them. This has proved to be successful when she perceives that she is “shutting down”, which she now recognises could lead to an emotional trigger.
- The applicant is seeking a professional career in social work particularly to support young people with drug and alcohol dependence. She appreciates the sense of loneliness a person feels when caught in that space and that she is good in developing rapport with that age group. She has also given thought to postgraduate studies in that field as a very long-term objective.
- The applicant was asked about the risk factors to which the Director referred in her reasons. She commented that there was little possibility of a relapse into her earlier situation and she has not used alcohol or drugs for six years. She was still involved in a therapeutic relationship with B and had a strong personal and professional network that could support her if she encountered difficult or stressful times.
- As mentioned in her personal history, she understands the Director’s concern about the seriousness of her offences. She reiterated that she is not the same person as she was at the time, that she has paid the price and that her life was now governed by a completely different set of relationships and circumstances.
- The applicant concluded by saying that there are now significant protective factors in her life. She has been in recovery since 2014. She has effective stress-management skills and personal development processes available if there are times of need. She still has feelings of guilt and shame over her offending behaviour, now with added insights to explain her life conditions at that time. She has a strong support network that extends into the tertiary education sector and she intends to continue counselling, which she sees as personal development. She has turned her life around and wants to give back to the community by way of involvement with young people.
- Questioning by the Department’s legal representative clarified the nature and extent of the applicant’s drug and alcohol dependence in the period 2011 to 2014, which began in her early teenage years. She described her work experience during those years as a casual employee in the hospitality industry, her separation from family members with the exception of her grandmother with whom she has maintained contact all along.
- The applicant acknowledged a serious drug addiction, and in response to the Department’s legal representative’s questioning explained that she had not committed offences to fund her drug additions beyond those for which she was charged. Her habit was either self-funded or she participated in groups in which drugs were shared. She reiterated again that the offences for which she was charged and convicted were inconsistent with her character.
- The applicant acknowledged that the police reports of the incidents were likely correct and had no reason to question their accuracy, as she could not recall that specific incident. She clarified the 2013 motor vehicle offences as two separate incidents that were dealt with by the court together. The legal representative questioned the presence of children during the armed robbery incident as the police report mentioned the presence of the family of one of the victims as nieces. It was put to the applicant that if she was unable to recall the events, it is likely that the use of the word “nieces” implied that children were present, observed the incident, and were adversely affected by it. The applicant rejected that implication.
Evidence given by witnesses
- All witnesses who attended the hearing gave evidence under affirmation.
- MS provided three references dated 4 October 2018, 20 August 2019, and 26 November 2019. She identifies as the Clinical Manager of a Queensland-based rehabilitation service. She had known the applicant for about 19 months. She wrote that the applicant has been working as a supervisor—then senior supervisor—in the service’s residential program. The applicant is a valued member of the team who provides strong leadership and creates a safe environment for the residents, thus enhancing their treatment experiences. She reported that she is fully aware of the applicant’s background and criminal history, which is considered a bonus when there is a need to assess clients’ risky behaviours.
- MS concluded that the blue card application reflects the applicant’s ongoing commitment to a positive and responsible life, continued improvement of her qualifications, and strengthening the resilience needed in her professional life.
- MS was called as a witness. She confirmed her awareness of the applicant’s criminal and drug history since the outset of her involvement with the service and was privy to the Director’s reasons. She said that the applicant works in the residential program and provides an afterhours extension to the daytime rehabilitation program. She emphasised that as a senior supervisor, the applicant has considerable responsibility and must apply the same professional standards as the clinical personnel use during the week. MS stated that it was extremely valuable to have staff—such as the applicant—who have lived experience because she has insight into the residents’ situations and can assess their needs and the problems they are confronting, which is an important program component.
- MS stated that she has 40 years of experience in the field and has no concerns whatsoever with the applicant’s employment as she is very mindful of the professional boundaries that must be kept. MS concluded that the period between the offences and now was significant and that the applicant’s continued participation in counselling was a very positive attribute.
- In response to the Department representative’s questions, MS stated that she sees the applicant once or twice each week, which might involve briefing and de-briefing sessions. She stated that the applicant knows how to minimise client stress and that she was a genuine asset to the service standing out among the 22 supervisors as the most effective individual.
- FJ provided a reference dated 25 September 2018. She identifies as a personal friend but also the manager of a Victorian youth service. She wrote that the applicant is trustworthy, and a productive member and contributor to the community. She has been an exceptional role model for FJ’s daughter over five years and she has had no concerns whatsoever about the applicant’s involvement in the daughter’s life.
- FJ was called as a witness. She has known the applicant for about seven of the 10 years during which she has worked in the community service sector. She met the applicant when the applicant entered a rehabilitation program and was aware of the applicant’s criminal history. She stated that the applicant has struggled, but has been proactive in seeking support when needed and has confided in her about a range of issues including relationships and her career. She says that the applicant has always been extremely positive.
- When questioned by the legal representative, FJ said that the applicant was fragile in the early recovery phase, but has grown considerably over the years. She has had a good relationship with FJ’s daughter and with a nephew, worked well with the clients of the community service, many of whom were under 18 years of age.
- C provided a reference dated 5 May 2020. He identifies as a Queensland-based Senior Project Officer with a youth and adult support program. He wrote that the applicant has been a peer facilitator in the non-residential rehabilitation treatment service since mid-December 2019. He is aware of her earlier substance use and criminal history. He stated that she is a highly valued member of the team and is effective in facilitating changes in the clients’ lives. He said that she wishes to continue in the field and supports her appeal.
- C was called as a witness. He stated that the applicant was a fantastic addition to, and an integral part of, the treatment program. He was aware of the applicant’s criminal history and emphasised the benefits of having someone who has recovered from a history of substance abuse as a symbol of hope for the present clients. He stated that the applicant works alongside clinical practitioners and her insight in her own drug abuse and its effect on her and others was extremely valuable. He continued that the applicant experiences stress from time to time, which is not unusual, and that she handles all work situations effectively. She has well-established self-care strategies and will seek advice and support whenever needed.
- C responded to the departmental representative that he engaged with the applicant when she worked part-time about five days a fortnight until he moved into a new managerial role. He concluded that the applicant has full management support.
- FP is the Director of the undergraduate social work program in which the applicant is enrolled. She provided two references, the first undated and the second dated 25 November 2019. In the first she stated that the applicant is a prime example of how a young person can turn her life around through commitment and hard work in the context of difficult psychosocial circumstances, mental health, substance misuse, and criminal offending. FP says that the applicant takes full responsibility for her past actions, strives to change her circumstances, and should be proud of her achievement.
- In the second letter, FP wrote that the applicant has achieved an exemplary grade point average in her studies that reflects her commitment to both her studies and her future. She drew attention to the need for a blue card to enable the applicant to participate in her first 500-hour field education practicum in 2021 and reiterated the applicant’s personal resilience, perseverance, and commitment to her chosen profession.
- FP was called as a witness. She stated that she has known the applicant for more than a year. She said that it was apparent that the applicant had turned her life around and that the reference she wrote for the application was the only reference she has written for a student in her 30 years as a professional. She stated that the applicant came to university in “good shape” and has been in recovery since 2014 and has gone “from strength to strength to strength.” She continues that recovery “is a hard road and I think she’s done it.” The applicant shows considerable resilience and strength. Those with experiences like the applicant’s, who seek social work as a career, bring to their role enhanced awareness of dysfunctional strategies and people skills.
- In response to the legal representative’s questioning, FP said that the evidence points to a successful rehabilitation and promising career in social work due to her life experiences.
- B is a social worker and counsellor at a Queensland service and is aware of the applicant’s criminal history. She provided a reference dated 18 December 2019. Therein, she wrote that the applicant commenced counselling with her in September 2018 and has completed 35 sessions to the date of the report. The therapeutic focus has been the impact of the violence she has experienced over her life. She presented with a cluster of negative perceptions and experiences and is greatly aware of their impact. The applicant has demonstrated a commitment to personal self-awareness, wellbeing, and the potential contribution she can make in her chosen profession. She is gainfully employed and committed to her Social Work degree.
- Over the course of the therapeutic relationship, the applicant has worked on an extensive range of interventions that include trauma informed therapy, dialectic behavioural therapy, mindfulness, cognitive behavioural therapy, strength-based perspectives, and psychodynamic approaches to understanding the inner functions that drive behaviour. These have also included work on emotional regulation and survival responses to emotional and behavioural triggers. B wrote that the applicant has made significant process and is able to address the effects of violence. She has considerable insight into her offending behaviour and possesses sustainable protective factors to ensure she will not re-offend. B said that the applicant is committed to continuing counselling, values the opportunity to reflect, and is mindful of the enhancement of her wellbeing for the community’s benefit.
- B was called as a witness. She is completely familiar with the applicant’s history and has worked with her for almost two years on a one- to three-week basis and continues to do so. She stated that the applicant is not in a risky situation. The therapeutic program has provided her with numerous skills that address and defuse triggers that could lead to trauma or anxiety. She possesses an extensive tool kit of skills that enable her to cope with such situations. Consequently, she is highly committed to a productive adult life and very resourceful. She has a range of protective factors that include her support group, the move away from the earlier life situations in Victoria, and a strong commitment to improving herself and contributing as a professional to the community and society in general.
- In response to the legal representative’s questions, B stated that the applicant’s symptoms have reduced in both number and intensity. She is aware of the way in which drugs and alcohol affected her and is aware of the triggers that might precipitate negative thoughts. B’s involvement with the applicant has focused on violence that she experienced as a child and as a victim of crime. She has not shied away from her responsibility for the offences committed and is fully mindful of their seriousness and can reflect on, and appreciate, the impact that those offences had on her victims.
- There are three written references in addition to those provided by the witnesses.
- MM wrote on 5 October 2018. She identifies as the supervisor at a youth centre. She writes that the applicant is a caring and empathic person who develops excellent rapport with the young clients while demonstrating clear professional boundaries. She is of the view that the clients trust her completely.
- FM is the General Manager of an organisation involved in supporting vulnerable people with a disability. In his reference dated 3 September 2019, he stated that he is aware of the applicant’s criminal history. He drew attention to the fact that the applicant holds the required government clearance to work in community services in another jurisdiction. He stated that significant opportunities would be lost if the appropriate clearance was not afforded to such a meritorious individual.
- R provided three references dated 27 September 2018, 19 December 2019, and 14 January 2020. She identifies as the Program Coordinator/Complex Care Coordinator in a recovery support services and a self-help residential addiction resource facility that assist individuals 16 to 25 years old having problems with drugs and alcohol. She reported that the applicant was admitted to the program in mid-2014 and discharged in mid-September 2016. She was involved in the program five days a week and resided in a managed facility at which she consented to bi-weekly drug testing. It was established that the applicant began involvement with drugs when she was 13-years-old and displayed a range of mental health issues. These issues were treated with psychiatric medications, which were gradually withdrawn.
- R is aware of the applicant’s criminal history. She considers that behaviour to be uncharacteristic, and this has caused the applicant considerable distress and remorse. The applicant has studied successfully at TAFE and secured employment in the alcohol and drug rehabilitation sector. She reported that the applicant is a caring, reliable, gentle, and hard working person, valued by many, and dedicated to a positive professional future. The case notes provided from the rehabilitation facility reflect a positive therapeutic outcome.
- In his final statement, the legal representative reiterated comments made in the Director’s Reasons and the written submission provided to the Tribunal during the hearing. He argued that the applicant has not presented a case that her situation is exceptional. He emphasised that the reason for her application for a blue card (i.e., to advance her studies) is irrelevant when considering her eligibility for a blue card. He reiterated the serious nature of the offences and that she may continue to lack insight into her offending.
- He again raised the concern that children might have been present during the applicant’s offending and that rehabilitation is not the only criterion for a successful recovery.
- He concluded by questioning whether the applicant’s functioning in the community at her age and stage of life is ordinary, therefore, not exceptional as required for the issue of a blue card.
- In her final statement, the applicant said that she was fully aware of the impact her behaviour would have had on the victims of her crime. She still experiences guilt and remorse for her actions. She challenged the legal representative’s assumption that children were present during the armed robbery as there is no evidence contained in the police report that children were present.
- She concluded by saying that the facts of her life since entering rehabilitation show what she has done to turn her life around and actively contribute to the welfare of others.
The Tribunal’s decision
- The Tribunal’s decision, as it was for the Director, is to determine what is in the best interest of children and whether it would be in their best interest for the applicant to work with them in regulated employment situations. The Tribunal’s focus is whether the applicant’s circumstances represent an exceptional case under s 266(2) of the Act.
- As with many blue card appeals, the present matter came to the Tribunal as the applicant’s future employment is compromised by the inability to obtain a blue card. It is noted that the applicant has been unable to pursue volunteer experiences or employment in drug and alcohol rehabilitation settings due to the absence of a blue card. In this regard, the Tribunal’s earlier comments are relevant. Any prejudice or hardship that the applicant might have experienced—or would experience—by not holding a blue card, are of no consequence when considering this matter. Furthermore, it is irrelevant whether children or youths might derive benefit from interactions with her.
- It is apparent that the applicant’s early years were traumatic and it is not unexpected that her experiences in the family home and at school would have had some persisting negative impact. In the applicant’s case, these appear to have led to a vulnerability to alcohol and drug use and homelessness, which eventually brought her into contact with the adult criminal justice system. Providentially, her convictions did not lead to incarceration.
- The applicant engaged with youth rehabilitation services after the armed robbery incident in 2011, reconnected with school education, and successfully completed the Year 10 school certificate program. Her rehabilitation, however, had little impact on her drug and alcohol use that led once more to the adult justice system, again avoiding incarceration. Her recent and current life trajectory appears to be more optimistic than is evident from her past.
- In support of her application, she has gathered references from professional colleagues and friends that reflect their positive views of her over several years, and her counsellor has reported the development of strategies and skills aimed at circumventing situations in the future that could lead to repetition of earlier offences if not checked.
- The Director’s concerns are set out in her Reasons dated 9 August 2019 and in subsequent submissions noted above. Therein, the Director raised several risk factors, the applicant’s:
- (a)past disregard for the safety of others, poor decision-making and reckless behaviour;
- (b)potential for a relapse into drug misuse and deteriorating mental health;
- (c)failure of the applicant in her correspondence to identify strategies that would obviate such relapses;
- (d)referees’ non-awareness of the applicant’s criminal history;
- (e)unexceptional current life course; and
- (f)likelihood of placing children at risk if she possessed a blue card.
- Two protective factors were mentioned: the applicant’s expressed remorse, guilt, and shame about her earlier behaviour and awareness of its impact on others; and volunteering, “to give back to the community”.
- I will now address the evidence by way of reference to the Director’s concerns along with the additional submissions made by the Department’s legal representative.
- The applicant acknowledges point (a). She concedes that she began taking alcohol around age 13 years and continued its use until 2014. She acknowledges drug addiction using a range of substances. She further acknowledges that this led her into situations in which she did not heed the dangerous consequences of her actions. She admits the offences committed. On numerous occasions in print and in the hearing the applicant expressed and explained remorse, guilt, and embarrassment that these events occurred, and she continues to remain solemn about the impact that they had on the victims. The witnesses similarly reported her deep regret.
- In regard to point (b), the applicant states that she has not used drugs or alcohol since 2014 and will continue abstinence. She has undertaken ongoing rehabilitation and counselling since 2014 and continues to attend regular counselling sessions with B to gain further understandings of the impact that childhood experiences and sexual predation have had on her life and how she can continue to strengthen her resilience against negative emotions and anything that might trigger relapse. B gave evidence that the applicant has learnt, has at her command, and uses numerous strategies and positive life skills that provide ways of thinking and behaving that allow her to deal successfully with disagreeable life events and the potential emotional fallout from them. All of the witnesses expressed views in various ways that the applicant is a successful, intelligent, and mature adult who has a clear and positive vision of her future in terms of her personal life and career.
- The applicant responded to point (c) stating that she did not provide comments in her submission to the Director on the strategies that would minimise the possibility of a relapse into drug and alcohol misuse. She said that this was not flagged in the Department’s correspondence as being required or important to her case and it did not occur to her to include it.
- As indicated in point (d), the applicant acknowledges that in only one of the references submitted to the Department did the referee note an awareness of her criminal history. Notwithstanding this, all of the witnesses during the hearing were asked if they were aware of that criminal history. All stated that they had known of the applicant’s offences and convictions from their initial contact with her. There is no suggestion in the evidence given that the applicant deliberately concealed—or attempted to conceal—her background to achieve complimentary references. In reality, it appears to be the reverse.
- Point (e) raises a number of issues, not the least of these is determining the meaning of “exceptional.” There is a range of authorities that supports the view about what constitutes an exceptional case. It is not defined in the Act, but is a matter of discretion based upon the circumstances of the case. In the Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492, the Queensland Court of Appeal endorsed a balancing approach between the relevant risk and protective factors arising from the circumstances of the particular case. The Director-General and the Tribunal have adopted this approach in numerous earlier decisions.
- The Department now appears to have added a further interpretation as outlined in paragraphs 27 and 28 of its written submission provided to the Tribunal during the hearing. This relates to the Commissioner for Children and Young People and Child Guardian v Eales  QCATA 303. In regard to that decision, the Director-General says that the balancing act between risk and protective factors has the potential to lead the Tribunal into error by considering the quantity of one against the other, rather than the quality.
- Whether or not the Tribunal has made—or would make—a decision on the basis of the quantity versus quality might be judged from a comprehensive review and analysis of the Tribunal’s case precedents. This is beyond the remit of this Tribunal. As highlighted above in , whether a case is exceptional is to be determined by considering the circumstances of each individual case, having regard to the legislative intention of the Act. The Tribunal must consider the totality of the applicant’s past and present circumstances in each individual case and makes its decision in the context of ensuring the promotion and protection of the rights, interests, and wellbeing of children in Queensland.
- The Department then refers to an Appeal Tribunal decision in the Commissioner for Children and Young People and Child Guardian v Ram and makes two points. First, that rehabilitation is only one factor when considering the issue of a blue card. “Remorse and insight are other aspects.” Second, when considering their case, the Appeal Tribunal decided that the applicant’s history and circumstances at the time did not amount to what would be considered anything other than the ordinary course of life that a law-abiding citizen would pursue.
- In the present matter, the legal representative argued that the present applicant’s circumstances did not extend beyond the ordinary course to achieve exceptionality.
- To put it in context, the Appeal Tribunal was not convinced that Mr Ram actually experienced remorse or had insight into earlier behaviour. It drew attention to its applicant’s failure to apprehend the impact of past violence and disregard for legal restrictions that might affect his dealings with others, particularly vulnerable people. It decided that while Mr Ram was living his life in a law-abiding way, his evidence was “put no higher than he is now functioning in the community at a level expected of a person of his stage and age in life.”
- This Tribunal finds the reference to law-abiding behaviour as a criterion of “ordinary course” difficult to apply in the present matter especially when it could readily be argued that those who live “ordinary” law-abiding lives are the most common recipients of a blue card. Notwithstanding this, the Appeal Tribunal determined that its applicant’s case was unconvincing.
- In the present matter, the written submissions and the oral evidence provide a compelling affirmation of an individual who has recognised her wrongdoings in her early adult life and the impact that those behaviours will have had on others. The applicant stated that she would wish for that time again when she could change the course of those events.
- Crucial to this review is the totality of evidence relating to the applicant’s past and present life circumstances. In matters similar to one currently under consideration where the applicant has survived a fraught—often injurious—earlier life, a determination of exceptionality would more properly relate to the accomplishments in overcoming considerable adversity and achieving the characteristics expected of an “ordinary” person. But there is more to being exceptional than achieving ordinariness, as the Department has argued.
- The applicant has undertaken a protracted period of rehabilitation and counselling to address the triggers that led to drug and alcohol misuse, and has sought to redress the wrongs done. While she recognises that she cannot undo the impact of her actions, she has volunteered in drug and alcohol community services to minimise in others the likelihood of similar occurrences by youths and young adults. This extends to her aspiration in a career in social work. And while B gave compelling evidence of changes in the applicant’s thinking processes, more significant is the evidence from the several professional people—the witnesses—who have worked with, or supervised, her over the past six years confirming the effectiveness of the applicant’s rehabilitation, determination to make amends for earlier errors of judgment, and the outstanding contribution she has made in every supporting role she has held. And it is further supported by her goal to study and work professionally in the area of drug and alcohol rehabilitation.
- As for point (f), often raised in the Department’s submissions—as in the present matter—are concerns about the applicant regressing to circumstances similar to those of earlier years, thus, potentially creating a situation in which children are placed at risk by virtue of having a blue card.
- Regardless of whether the evidentiary test is “beyond reasonable doubt” or “on the balance of probabalities” there will always be some doubt, and probability can never be zero. It is the Tribunal’s responsibility to consider all evidence in the context of the purpose of the Act and judge the likelihood of that risk.
- This leads the Tribunal to the final matter raised in the Department’s final written and oral submissions, that is, the presence of children during the applicant’s offending. The legal representative referred to a comment by the applicant in her 30 December 2019 submission to the Tribunal, “I have never put any children in danger or caused any harm and never would.” He draws attention to the Victoria Police report dated 7 September 2018 that includes notes concerning the applicant’s offence on 19 February 2011. Therein, the report states, “Victim 2 began to walk off when he noticed the applicant had a syringe with her and standing in front of his nieces.” The legal representation put to the applicant that the nieces to whom the report referred were children and she could not deny that, as she had already given evidence that she had no recollection of the event until she woke up in custody. The applicant stated that she could not confirm or deny that, but it does not follow that a niece is a child.
- The Tribunal is not convinced by the Department’s reasoning. The word, niece, refers to a relative who is the daughter of one’s brother or sister or of one’s brother-in-law or sister-in-law. It has no meaning in terms of a person’s age. There are additional issues that make the Department’s assertion questionable. If children were present, it is highly likely that the attending police officers would have drawn attention to the presence of children. Victim 2 was almost 52 years old at the time of the incident. And while it is possible for Victim 2 to have nieces under 18 years of age, it is also possible that they were older than Victim 2. If they had been children it is likely that “children” rather than “nieces” would have been used, the latter being a common identifier when referring to an adult family member. One could continue to speculate about this. In reality, there is no evidence submitted to confirm the Department’s allegation or to discredit the applicant’s statement in her 30 December 2019 submission. There is no mention that children were aggrieved persons in any incident reported.
- In coming to a decision in this matter, the Tribunal recognises that the Act is specific about its purpose, as I have noted several times above. The submissions made by the Director-General present a case that the risk factors override the protective factors that are listed in . There is a further submission that the applicant’s case amounts to no more than what one would expect for a law-abiding citizen and is, therefore, not exceptional.
- In regard to this last point, the applicant’s early life was far from ordinary. She grew up in a family situation that she describes in her “life story” as dysfunctional with unresponsive, dismissive, verbally abusive, and neglectful natural parents, a father with alcohol and gambling problems, and a mother with post-natal depression. There followed a breakup of the parents’ marriage and parental reconfigurations and questionable child-rearing practices. During her school days, the applicant was the subject of abuse and sexual assault; she was introduced to marijuana and eventually left home around 15 years of age. Her situation deteriorated and she was subjected to physical, mental and sexual abuse by a partner, and later the death of another partner from a drug overdose. Any reasonable analysis of these circumstances would not align with a contemporary Australian society’s view of an ordinary upbringing.
- Since the offences and convictions in 2014, the applicant’s life has taken a very different course, one in which she has sought to understand the origins of her offending, the impact of her early life on her behaviour, and a change of living practices that would ensure personal, cognitive, and professional growth. Witnesses with up to 40 years of professional experience have confirmed this. All have testified to the applicant’s progress, achievements, and exemplary aspirations. The Tribunal is satisfied that the applicant’s life course since her offending is, indeed, an exceptional about-face. Risk can never be eliminated fully. In the present case, the risk factors raised by the Director in her Reasons provide a background to the applicant’s past behaviour, but they are also a measure against which one can judge her personal and professional growth.
- No evidence has been presented in the written material or in the oral evidence given at the hearing that the applicant has caused any harm to children. Given the applicant’s involvement in youth rehabilitation services and her possession of the Victorian equivalent of a blue card, any potential for risk to children would seem to this Tribunal to be exceedingly small. Hence, in coming to the decision, the Tribunal finds that the protective factors summarised above that exist in the applicant’s life now and described in the evidence do not sustain a position that the applicant is a risk to children any greater than for any other adult in the community, arguably less. There is no evidence that the applicant has directly involved children in any contravention of the law. There is no compelling evidence that such a risk would occur in the future.
Publication of these reasons
- The Tribunal has considered a non-publication order that is intended to protect the applicant’s and other parties’ identities. A non-publication order can be made if it is considered necessary in the interests of justice, among other reasons. The legal representative and the applicant agreed that this is appropriate.
- In this matter, the applicant is at the beginning of a professional career that has the potential to do much good. The Tribunal sees no value in having the reasons that led to its decision on public record, that is, they are not to be published online.
- The Tribunal holds the view that should the Director-General decide to issue a blue card it should be without fanfare or reference to this Tribunal’s decision, but should be taken on face value that there was no reason to deny it.
- The decision of the Director-General, Department of Justice and Attorney General that the Applicant's case is not "exceptional" within the meaning of s 225 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal's decision that there is an exceptional case.
- In accordance with s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal orders that the publication of this document is prohibited.
- Published Case Name:
PRH v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
PRH v Director-General, Department of Justice and Attorney-General
 QCAT 331
Member Professor Ashman
17 Aug 2020