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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Sheraton v Director-General, Department of Justice and Attorney-General  QCAT 431
Caleb ee-yang Sheraton
Director-general, department of justice and attorney general
9 November 2020
22 October 2020
The decision of the Director-General, Department of Justice and Attorney-General made on 13 November 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
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 convictions for drug offences – where not categorised as serious or disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where applicant has traffic record – whether an ‘exceptional case’ warranting departure from the general rule that a working with children clearance must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)
Human Rights Act 2019 (Qld), s 13, s 58
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360, s 580,
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
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 and Anor  QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28
Re TAA  QCST 11
REASONS FOR DECISION
- The applicant, a young man who had previously held a positive notice and blue card, was most recently issued a positive notice and a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) on 28 February 2018. Following notice of a change to his police information, the respondent reassessed the applicant’s eligibility.
- The respondent proposed to cancel the applicant’s positive notice and issue a negative notice so invited the applicant to make submissions about whether there was an exceptional case for the applicant. The applicant did not make submissions in response to this invitation. In making its decision, the respondent considered, amongst other things, oral submissions made by the applicant to an officer of Blue Card Services in October 2016 in relation to a previous assessment.
- The respondent cancelled the applicant’s positive notice and blue card and issued a negative notice on 13 November 2019. 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.
- The applicant is not a disqualified person and sought review of the decision within the prescribed period.
The legislative framework
- Pursuant to amendments to the WWC Act which came into effect on 31 August 2020, in undertaking this review the Tribunal must apply the amended WWC Act.
- 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:
- (a)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 working with children clearance 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 chapter 7, part 4, division 4 and sections 199, 295(1) and 296.
- (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 working with children clearance, the chief executive must issue a negative notice to the person.
- For the present purposes, a working with children clearance 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 working with children clearance to be issued.
- The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:
…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.
- In determining whether there is an exceptional case when a person has been convicted of 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.’
- ‘Conviction’ is defined in Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
- In determining whether there is an exceptional case the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved. The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.
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
- For the purposes of the WWC Act, the applicant has convictions for the following offences:
- (a)Possession of dangerous drugs (two convictions);
- (b)Possession of utensils or pipes etc for use; and
- (c)Possession of utensils or pipes etc that had been used.
Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence
When the offence was committed or is alleged to have been committed
- The applicant’s offending occurred in June 2016 and August 2018.
The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children
- In June 2016, the applicant was pulled over by police due to his manner of driving. The applicant was the owner and sole occupant of the vehicle. While police were talking to him, they observed a bowl containing green leafy material in the footwell of the vehicle. The applicant acknowledged to police that the material was cannabis and indicated there was also a water pipe in the vehicle. Police searched the vehicle, and in addition to those items also found a clip seal bag containing 3.5 grams of cannabis and scissors.
- In August 2018, police inspected the car in which the applicant was an occupant. He was with his then girlfriend in the vehicle. Police searched the vehicle and found cannabis and utensils, which Mr Sheraton said belonged to the two of them.
- The applicant held a positive notice and blue card at the time of each of these offences. There is no suggestion that children were present at the time of Mr Sheraton’s offending.
- Blue card holders are expected to behave in a manner that protects and promotes a child’s safety and physical and psychological wellbeing. Drug use would be likely to detract from the applicant’s ability to provide a protective environment for children placed in his care, and his ability to present as an appropriate role model for them. The applicant’s drug related offending is directly relevant to his capacity to provide a protective environment for children in his care.
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 Court imposed fines on the applicant for his offending. In relation to the 2016 offence he was also placed on a good behaviour bond and ordered to attend drug diversion.
- The court’s reasons for imposing these penalties are not known to the Tribunal.
Any information about the person given to the chief executive under sections 318, 319, 335, 337 or 338 of the WWC Act
- No information was requested or received under these provisions.
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 offending reasonably considered to be relevant are discussed below.
The material and the evidence
- The applicant provided the Tribunal with his life story and a statement as well as statements from his father and three friends. Mr Sheraton provided a photograph of a drug test he said he undertook in June 2020 and a 2018 clinical assessment tool from his university course. He made oral submissions to the Tribunal.
- The respondent provided the Tribunal with a bundle of documents paginated BCS-1 to BCS-50, including the reasons for the decision. The respondent had the opportunity to cross-examine Mr Sheraton, his father and two friends, and made oral submissions.
- Mr Sheraton described a comfortable childhood with a supportive family and stable home environment and a group of long-term friends, including family friends.
- The applicant said that his offending, while aged 18 and 21, occurred as a result of his immaturity, including that because he is easily led his immaturity meant that he struggled to ‘differentiate when “good friends” become a bad influence’.
- He said that after leaving high school at the end of 2014, he started mixing with people from different backgrounds and with different beliefs. During 2015 he became comfortable with cannabis use as his friendship group used it and decided that associating with drug users did not affect him.
- He denied the drugs found in his car in 2016 were his, saying that he foolishly allowed a friend to leave drugs and utensils in his car. In his oral evidence he said that he believed that his friend’s car could be readily searched by police due to his friend’s criminal history but that his car could not be so readily searched, so he allowed his friend to keep his drugs and utensils in his car for his friend’s use. He said his friend would smoke cannabis in the applicant’s car before they went to the gym together.
- The police brief indicates that the applicant admitted to police that he smoked cannabis with his friend before going to the gym. Before the Tribunal and in conversation with an officer of Blue Card Services in 2016 the applicant denied saying this to police. He also told the Tribunal that while he advised the police that he did not know the name or address of his friend, he said this because he did not want to provide that information to the police.
- Mr Sheraton said that this was a wakeup call and that after this offence he ‘ceased having substantive contact with my friends who were using cannabis. I decided to form a new circle of friends.’
- In oral evidence the applicant said that he remained in contact with this friendship group and continued to play sport with them, but avoided going to their houses or to parties with them and stopped going to the gym with a friend who used drugs. While he formed the intention to develop a new friendship circle he did not do so. Mr Sheraton’s ex-girlfriend attributed keeping these friends in their lives as leading to the applicant’s 2018 conviction.
- Mr Sheraton did not consider that he derived any benefit from the drug diversion course he was required to attend as a result of the 2016 conviction.
- Following the 2016 offence the applicant said that he focused on his nursing studies and his relationship with his then girlfriend, but in 2018 again lost focus on his career due to relationship difficulties.
- At about the same time, as a result of his own wider reading and his studies, he said he received mixed messages about the positives and negatives of cannabis use and struggled with his views on cannabis. He had friends who had been smoking cannabis for years with no adverse consequences. He said the 2018 charge was again a wakeup call. He ceased pursuing a relationship with his then girlfriend, who he said poorly influenced his views regarding the use of cannabis.
- Mr Sheraton’s oral evidence was that he tried cannabis over a couple of days at schoolies week in 2014 and then did not use cannabis again until he attended a festival in July 2018. Following the festival, he and his then girlfriend used cannabis once or twice a week until he was charged in August 2018.
- Mr Sheraton said he is now abstinent from drugs, including prescription medication. He provided a photograph of a drug screening test result, which he says shows that he was not using cannabis at the time of the test. As the veracity of the test is unknown the Tribunal places no reliance upon this test. He said that no one in his current friendship group uses illicit drugs.
- Mr Sheraton said that he has spent a long time struggling with what to think about drugs. He acknowledged that it remains difficult for him to articulate his current views on the use of cannabis. He acknowledged that cannabis was not something that a health care professional should be using. He remarked that views about the medicinal use of cannabis and the legality of cannabis use have changed over recent years, with its use becoming legal in some places.
- Mr Sheraton said that he is extremely remorseful for his offending behaviour, which he accepted was a result of his poor decisions. Mr Sheraton spoke passionately of his desire to pursue a career in the medical field. He said that he is now focussed on his nursing degree which he hopes to complete in mid-2021 and then he wishes to continue his studies, perhaps in pharmacology or physiotherapy. He acknowledged that these proceedings have caused him to focus upon his career.
- Mr Sheraton said that he used cannabis because:
- (a)seeing friends with blue cards use cannabis lessened his impression of the seriousness of the consequences of his use;
- (b)he had read studies supporting the medical use of cannabis and its use is legal in the United States and the ACT;
- (c)he believed that 2018 might be his only chance to use cannabis because he considered it would be irresponsible for him to use it once he became a nurse;
- (d)the use of cannabis was part of his relationship with his then girlfriend following their attendance at the festival.
- His traffic record indicates that Mr Sheraton has 10 traffic offences over the period December 2014 to July 2019 for offences including failure to wear a seatbelt, speeding, failure to have proper control of a vehicle, using a mobile telephone and, in 2015, unlicensed driving. He received fines and incurred demerit points. He was fined and disqualified from driving for six months for unlicensed driving.
- Mr Sheraton also has entries on his non-TORUM record for offences in 2016 and 2017 for which he received fines. In 2017 the applicant climbed a crane on private property, with a group of work colleagues. He said that at this time in his life he was making a lot of poor decisions.
- Mr Sheraton identified the 2018 charge, getting older and having his blue card cancelled because of his offending, as factors that have changed his attitude and so mitigate against his further offending. He said his friendship group has now changed and that he has grown since his offending. Mr Sheraton spoke of his support network including his parents and his younger sister as well as some high school friends with whom he has reconnected.
- Robert Sheraton, the applicant’s father, provided a statement. He supports his son’s application for a working with children clearance, which would enable him to complete his nursing degree. He reflected that his son had matured since his offending and confirmed his son’s desire to care for people by working in the medical profession. He has seen no evidence of his son using illicit drugs for a few years.
- Mr Walsh has known the applicant since 2012 and considers him a good friend. Whilst perhaps not fully aware of the applicant’s offending behaviour, he considered the criminal charges were a result of Mr Sheraton’s immaturity. He was of the view that at schoolies Mr Sheraton became involved with a group of friends who engaged in regular illegal activities and that this group negatively influenced Mr Sheraton for a number of years.
- His evidence was that Mr Sheraton’s cannabis use was more extensive than acknowledged by Mr Sheraton, saying that it peaked in about 2015 or 2016 and that to his knowledge the applicant has not used cannabis since he lost his blue card in about November 2019.
- Mr Walsh said that from about the end of 2019 Mr Sheraton has made good decisions ‘to distance himself from this activity, and I believe he has realised the negative impact it has had on not only himself, but his studies, and his aspirations to help others.’
- The applicant’s girlfriend at the time of the second offence, was not available for cross examination, although she provided a statement to the Tribunal. She spoke of the positive contribution she considered Mr Sheraton would make in his chosen career and supported his application for a blue card. She acknowledged that their then friendship group influenced their decision making, which had poor outcomes for them both. She also said that they had both since endeavoured to move away from the friendship group and cannabis use.
- Mr MacLean has been a friend of Mr Sheraton’s since very early childhood. Mr MacLean said he was aware that the applicant used cannabis from the end of 2014 to the end of 2016. Mr MacLean travelled overseas from 2016. While Mr MacLean was aware of the applicant’s first offence it was not apparent that he had knowledge of the applicant’s 2018 offence. He presently sees the applicant almost daily as they have been flatmates since the second half of 2018. He said that Mr Sheraton became involved in a friendship group which was a poor influence upon him at the end of high school, but that since they started flatting together Mr Sheraton has endeavoured to distance himself from this group and their activities. He considered that Mr Sheraton has matured over the past few years.
- In undertaking this review and determining the correct and preferable decision, the welfare and the best interests of a child are paramount. It is essential that those responsible for the care of children are able to exercise sound judgement to ensure their wellbeing.
- 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.
- The Tribunal accepts the applicant’s genuine desire to work in the medical field. This desire has solidified since the respondent’s November 2019 decision the subject of this review, as it became apparent to the applicant that his offending behaviour may jeopardise the completion of his studies. However, any hardship to Mr Sheraton by his not being granted a working with children clearance is not relevant to the Tribunal’s consideration.
- The applicant’s offending, traffic history and non-TORUM record indicate to the Tribunal that the applicant has made poor choices over the period from 2014 to 2019. This raises concerns about the applicant’s ability to act in an appropriate manner and within legal boundaries. He held a blue card at the time of both offences which also adversely reflects upon his judgement.
- As a result of a conversation the applicant had with an officer of Blue Card Services in 2016 in the course of obtaining a blue card, he should have been aware that drugs charges were of concern to the respondent in its consideration of such applications. Despite this he used cannabis during 2018.
- The applicant said he was led astray. Whilst Mr Sheraton expressed the desire to change friendship groups after the 2016 offending, on his evidence, he did not do so prior to his 2018 offending. It is unclear to the Tribunal the extent to which the applicant has since distanced himself from the friendship group he identified as a poor influence on him. He remains in sufficient contact with his ex-girlfriend to have obtained a statement from her in May this year for the purposes of these proceedings. Mr Walsh said he observed that only as recently as the end of 2019, Mr Sheraton started to make good decisions to distance himself from the illegal activity of this friendship group.
- The Tribunal accepts that since the end of 2019 Mr Sheraton has developed awareness of the potential for his conduct to adversely impact his career aspirations. The applicant acknowledged that the November 2019 decision of the respondent to refuse his blue card application has caused him to focus on his career. While this is a commendable focus for the applicant, it is unclear to the Tribunal whether the applicant has developed the requisite skills and strategies to enable him to make appropriate choices in the future. In the Tribunal’s view the applicant has had insufficient time to adequately demonstrate that he has developed the skills and ability to exercise sound judgement when making decisions or that he has developed appropriate strategies to deal with triggers such as peer pressure.
- The evidence regarding Mr Sheraton’s drug use, and when he ceased using drugs, is inconsistent. His friends said his drug use was more extensive than acknowledged by Mr Sheraton. Of further concern to the Tribunal is the applicant’s attitude towards cannabis use, which is a risk factor.
- The insight and remorse expressed by the applicant were in the Tribunal’s view, related to the effect of his behaviour upon his career plans. It is not apparent to the Tribunal that the applicant has developed genuine insight into his offending behaviour.
- The Tribunal accepts that Mr Sheraton wishes to pursue his studies and has support from family and friends. However, these protective factors have been insufficient to prevent the applicant’s offending behaviour in the past.
- In undertaking this review the Tribunal is acting in an administrative capacity and consequently is a ‘public entity’ of the purposes of the Human Rights Act 2019 (Qld) (‘HR Act’). Thus, pursuant to s 48 of the HR Act, the Tribunal must interpret statutory provisions in a way that is compatible with human rights, and in undertaking this review is required to conduct itself in accordance with s 58 of the HR Act.
- As observed above, it is not the purpose of this review and decision to impose additional punishment on the applicant for his past conduct, but rather to protect children.
- This review does not constitute a retrial as the Tribunal’s role is not to determine the Applicant’s guilt. Rather, the Tribunal’s function is to review the respondent’s decision that the applicant’s case was an ‘exceptional case’ in which it would not be in the best interests of children for the applicant to be issued a working with children clearance and blue card. The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children in Queensland through a scheme ‘…to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so’.
- As required by s 361(1) WWC Act, the hearing was held in private, which the Tribunal considers to be compatible with the human rights set out in s 31 of the HR Act.
- The applicant’s human rights, in particular, his rights to a fair hearing and not to be tried or punished more than once were considered by the Tribunal. The Tribunal has also considered the right of every child to ‘the protection that is needed by the child, and is in the child’s bests interests, because of being a child’. The Tribunal is satisfied that this decision is compatible with human rights and that to the extent that there are any limitations on those rights, those limitations are reasonable and justifiable in accordance with s 13 of the HR Act.
- In making this decision the Tribunal is mindful that the effect of issuing a blue card is that the applicant is able to work in any child related employment or conduct any child related business regulated by the WWC Act, not just for the reasons the applicant has sought the card. Conditions cannot be imposed on a blue card and once issued it is unconditional and fully transferable across all areas of regulated employment and business.
- On balance, after consideration of all of the evidence, the findings of fact, 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 an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued.
- The decision of the Director-General, Department of Justice and Attorney-General made on 13 November 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
At the relevant time WWC Act, s 169.
WWC Act, s 580.
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, , citing Kent v Wilson  VSC 98, .
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.
WWC Act, Schedule 2.
Ibid, Schedule 4.
Ex 3, BCS18.
Ex 3, BCS37.
Ex 1, p8.
Ex 2, Appendix 1.
Ex 3, BCS49-BCS50.
Ex 1, p7.
WWC Act, s 360.
 QCST 11, . See also Commissioner for Children and Young People and Child Guardian v Lister (No 2)  QCATA 87.
WJ v Chief Executive Officer, Public Safety Business Agency  QCATA 190,  (Thomas J).
HR Act, s 31.
HR Act, s 34.
HR Act, s 26(2).
- Published Case Name:
Sheraton v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
Sheraton v Director-General, Department of Justice and Attorney-General
 QCAT 431
09 Nov 2020