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Reardon v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 61

Reardon v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 61

CITATION:

Reardon v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 61

PARTIES:

Samantha Leah Reardon

(Applicant)

v

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML167 - 15

MATTER TYPE:

Childrens Matters

HEARING DATE:

19 November 2015

HEARD AT:

Brisbane

DECISION OF:

Member Traves

DELIVERED ON:

8 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive Officer, Public Safety Business Agency made on 3 June 2015 to issue a negative notice and refuse the blue card application by Samantha Reardon is confirmed.

CATCHWORDS:

REVIEW JURISDICTION – BLUE CARD – where conviction of serious offence and other property and drug related offences - previous long term dangerous drug addiction - whether an “exceptional case” warranting departure from the general rule that a negative notice must be issued – application of factors in s 226 of the  Working with Children (Risk Management and Screening) Act 2000 (Qld).

Drugs Misuse Act 1986 (Qld), s 6

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Working with Children (Criminal Record Checking) Act 2004 (WA), s 12

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 162, s 167, s 169, s 221, s 222, s 223, s 225, s 226, s 260, s 353, s 354, s 358, s 360

AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248

Baker v The Queen (2004) 223 CLR 513

Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28

Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492

Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27

Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171

D and Department for Community Development [2007] WASAT 154

Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153

Kent v Wilson [2000] VSC 98

Lu v Chief Executive Officer, Department for Child Protection [2013] WASAT 69

R v Gaw [2015] QCA 166

APPEARANCES:

APPLICANT:

Ms Samantha Reardon appeared for herself

RESPONDENT:

Ms Natalie Taylor represented the Chief Executive Officer of the Public Safety Business Agency

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Public Safety Business Agency to issue a negative notice in respect of the application by Ms Samantha Reardon for a blue card.
  2. [2]
    Ms Reardon has made considerable efforts to turn her life around.  Her mother died of an overdose when she was a child, she began taking drugs at the age of 14, was expelled from two boarding schools, has been convicted of a string of property and drug related offences and in 2006, was convicted of the serious offence of supplying a dangerous drug within a correctional centre.  Ms Reardon had abstained from drugs for about two years ending in 2003 but the pressure of studying law, coupled with moving from the Gold Coast to Brisbane and being a single mother proved too much and she relapsed. In 2013 Ms Reardon commenced an intensive drug rehabilitation program and has remained drug free since then.  She would like to work in the field of community service, in particular working with indigenous communities. However to complete her course in Community Service at TAFE, Ms Reardon needs a blue card.
  3. [3]
    In short, to qualify for a blue card, having been convicted of a serious offence, the Chief Executive needed to be satisfied that hers was an “exceptional case in which it would not harm the best interests of children for her to be issued with a positive notice.” He was not. Whether her case is an exceptional one, within the meaning of the Act, is the principal issue in this review.

The background to the application for review

  1. [4]
    Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act). Ms Reardon made a prescribed notice application under the Act in the hope she would be issued with a blue card which she needs to complete the practical component of a Diploma of Community Services she is undertaking at TAFE. 
  2. [5]
    A trainee student who has been placed by an education provider to carry out work, whether paid or unpaid, is deemed to be employed by the entity to which the student has been placed.[1] As the placement by TAFE may involve working with children and Ms Reardon is deemed to be employed by the entity to which she is placed, a blue card is required.
  3. [6]
    The Public Safety Business Agency refused Ms Reardon’s application by issuing a negative notice on 3 June 2015. Ms Reardon has applied to the Tribunal for a review of that decision. A person who is not a disqualified person[2] is entitled to apply for review of a “chapter 8 reviewable decision” within 28 days.[3] This includes a decision as to whether or not there is an exceptional case if, because of the decision, a negative notice was issued.[4] 
  4. [7]
    The Tribunal is to decide the review in accordance with the Act and the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act). The Tribunal has all the functions of the decision-maker for the decision being reviewed.[5] 
  5. [8]
    The purpose of the review is to produce the correct and preferable decision. In meeting that purpose the Tribunal must hear and decide the review by way of a fresh hearing on the merits.[6]
  6. [9]
    Ms Reardon is not a disqualified person and applied for review within the prescribed period.

The “blue card” legislative framework

  1. [10]
    A person with a “blue card” is entitled to engage in regulated employment. The fact a blue card has been issued constitutes a positive representation that the holder has been determined by the relevant government agency to be safe to work in child related employment. 
  2. [11]
    The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in particular employment or particular businesses.[7] It is protective legislation and has been described as “precautionary” in its approach.
  3. [12]
    A child related employment decision[8] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[9] The overriding concern is the potential for future harm to children.
  4. [13]
    The Act deals with “blue card” appllications in two broad categories:
    1. (a)
      Where a blue card must be issued 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 blue card to be issued;[10] and
    2. (b)
      Where a blue card must not be issued unless the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for a blue card to be issued.[11]
  5. [14]
    The first category applies to situations which range in scale from a case where there is no police or disciplinary information about the person to a case where the person has been convicted of an offence, provided it is not a serious offence. In such a case the default position is that a blue card must be issued unless it is an exceptional case in which it would not be in the best interests of children for the person to have one.
  6. [15]
    The second category applies where the applicant has been, or is, a disqualified person or where the applicant has been convicted of a serious offence. In this category the default position is that a blue card must not be issued unless it is an exceptional case in which it would not harm the best interests of children for the person to have a blue card. This is the category that applies to Ms Reardon. The relevant test is that in s 225.
  7. [16]
    Section 225 provides:

(1) Subject to section 223 and subsection (2), the chief executive must issue a negative notice to the person if the chief executive is aware the person—

(a) is a relevant disqualified person because the person is subject to a temporary offender prohibition order or interim sexual offender order; or

(b) has been a relevant disqualified person at any time but is no longer a relevant disqualified person (other than a person who was a relevant disqualified person by reason of a conviction, sentence or order that was set aside on appeal); or

(c) has been convicted of a serious offence.

(2) If subsection (1)(a), (b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a positive notice to the person. [Emphasis added.]

  1. [17]
    A negative notice was issued on the basis Ms Reardon had been convicted of a serious offence and the chief executive was not satisfied hers was an exceptional case within the meaning of s 225(2).
  2. [18]
    “Serious offence” is defined as an offence against a provision of an Act mentioned in Schedule 2 or 3, column 1, subject to any qualification in column 3.[12] The offences in Schedule 2 include various sex offences against children and also offences not necessarily involving children but which would ordinarily be regarded as rendering a person who has committed them unsuitable to carry out work involving, or likely to involve, contact with children.  Clearly, the nature of the offence is a significant indicator of the danger an offender may pose to a child.[13] 
  3. [19]
    Most of the offences listed are unqualified, for example, those involving sexual abuse of children. Of the 4 offences listed involving drugs, those involving trafficking are unqualified but the offences of supplying dangerous drugs and producing dangerous drugs are qualified.
  4. [20]
    Relevantly, the offence of supplying of dangerous drugs[14] is categorised as a “serious offence” for the purposes of the Act if it is an offence of aggravated supply.[15] “Aggravated supply” includes, relevantly, where the offender is an adult and the person supplied with the drugs is within a correctional facility.[16]  Although this offence does not involve children it is categorised as a serious offence.  The proper inference must be that it would harm the best interests of children for people with a conviction of that offence to work with children unless it is an exceptional case within the meaning of s 221(2) and based on the factors in s 226(2) and any other relevant factors.
  5. [21]
    Ms Reardon supplied heroin to a male friend while visiting him in jail on 31 January 2005. She was convicted of supplying drugs within a correctional facility on 11 May 2006 and was sentenced to 6 months imprisonment.
  6. [22]
    It follows that Ms Reardon must be given a negative notice unless the Tribunal is satisfied that it is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued.

What are the requirements for an exceptional case in which it would not harm the best interests of children for a positive notice to be issued

  1. [23]
    The legislation does not prevent someone with a conviction for a serious offence from ever having a blue card. Although ordinarily a negative notice will be issued, the Parliament has conferred a power on the Chief Executive Officer where it is affirmatively satisfied that an “exceptional case” exists, to issue a positive notice.  This necessarily requires an analysis or evaluation of the risk or degree of risk that the applicant would harm the best interests of children in the course of carrying out child-related work. If the Tribunal is satisfied that the case is an exceptional one in which it would not harm the best interests of children for a positive notice to be issued, the Tribunal must give a positive notice to the applicant.[17]

What does “exceptional case” mean?

  1. [24]
    Exceptional case is defined in Schedule 7 to mean “exceptional case as mentioned in section 221(2), 222(2), 223(4) or 225(2)”.[18] An exceptional case in the context of s 225 has been held to mean one that does not conform to the general rule, which is that a negative notice must issue refusing a “blue card”.[19]  Whether a case is exceptional is a matter of discretion and there is a reluctance to lay down any general rule as to what is an exceptional case.[20] In applying the discretion the factors in s 226 (2) must be considered.
  2. [25]
    What constitutes an exceptional case or, in the context of equivalent legislation in other States, exceptional circumstances, has been considered by the courts and Tribunals on numerous occasions.  
  3. [26]
    The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford) defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special.'
  4. [27]
    In Baker v The Queen[21] Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward)[22] to the application of  'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said:

We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

  1. [28]
    The expression “exceptional case” must be read in its statutory context.  The purpose of the legislation is to protect children by preventing people who pose a risk of harm to their best interests from working with them. The intent of the specific provision is to make it the usual case that those who commit serious offences will not be issued with a blue card.[23]  That intent should not be subverted by an over-readiness to regard as exceptional any factor relevant to an applicant’s case. For example, it is not sufficient to establish an exceptional case for an applicant to demonstrate that they are now living an unexceptional mode of life.[24]  This argument amounts to a contention that the “conversion” from an abnormal life to a normal life constitutes an exceptional case. If that was the case, past criminal conduct, including  conviction of a serious offence, would be either irrelevant or merely a base from which to compare current behaviour. This approach alone does not address the issue of the risk of repetition of past behaviour or the risk of relapse which in turn inform the risk of harm to the best interests of children.  For the construction of the Act to be reasonable and in accordance with its objects, “exceptional case” must be directed to or defined by reference to this risk.
  2. [29]
    Having said that, within these parameters, it is possible for a combination of circumstances which would not individually be unusual to be considered extraordinary. In R v Gaw[25] the Queensland Court of Appeal recently held in a different statutory context:

What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional.  Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.

The mandatory factors

  1. [30]
    In deciding whether it is an exceptional case in circumstances where the applicant has been convicted of or charged with an offence, the Tribunal is obliged to consider the factors in s 226 (2). These factors are not exhaustive[26] and will not necessarily be given equal weight in the evaluative exercise to be undertaken. What weight is accorded to each factor will depend upon the facts and circumstances of the particular case. 
  2. [31]
    It is important to emphasise that none of the mandatory factors qualify the principle that the welfare and best interests of a child are paramount.[27]  This does not mean however that the factors are excluded by this overriding principle, merely that they are subordinated to it. “Paramount” is not equivalent to sole.[28]  
  3. [32]
    The factors which must be considered are:
    1. (a)
      In relation to the relevant offence:
      1. Whether it is a conviction or a charge
      2. Whether the offence is a serious offence and if it is, whether it is a disqualifying offence; and
      3. When the offence was committed; and
      4. The nature of the offence and its relevance to employment, or carrying on a business that involves or may involve children; and
      5. In the case of a conviction – the penalty imposed by the court, and if the court decided not to impose an imprisonment order or not to make a disqualification order under s 357, the court’s reasons for its decision.
    2. (b)
      Any information about the person given under s 318 (DPP) or s 319 [Corrective Services];
    3. (c)
      Any report about the person’s mental health given under s 335;
    4. (d)
      Any information given under s 337 [Mental Health Court] or 338 [Mental Health Review Tribunal]
    5. (e)
      Anything else relating to the commission of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  4. [33]
    These factors, unlike the position under differently worded, equivalent legislation in other States,[29] are not exhaustive.  Although the factors in the Queensland Act are not exhaustive and there appears no express constraints on the matters that may be taken into account when considering whether there exists an “exceptional case”, the Appeal Tribunal has held that any hardship or prejudice caused to the applicant are not relevant considerations.[30] 

The applicant’s evidence and submissions

  1. [34]
    The applicant is 45 years of age.
  2. [35]
    The applicant relied on the testimony of the following witnesses: Dr Luke O'Regan, Dr Simon Murray, Mr Paddy O'Regan, MR, Ms Vicki Yates, Mr John Kourkouridis and Mr Edward Allen. A statement by Mrs Marguerite O'Brien (who was unable to attend the adjourned hearing date) was also tendered.
  3. [36]
    It was not disputed that Ms Reardon has a long history of drug addiction. This is associated with a criminal history of property and drug related offences which were committed during the period from 2000 to 2010. Apart from a two year period of abstinence which ended in 2003, Ms Reardon has used drugs almost all of her adult life, and until as recently as 2013.
  4. [37]
    The evidence supports the view that Ms Reardon is presently in recovery from her drug addiction, having completed two and a half years of total abstinence.[31]
  5. [38]
    Dr Luke O'Regan, Psychiatrist, distinguished Ms Reardon’s current period of abstinence from a previous two year period of abstinence which ended in 2003. Dr O'Regan observed that her previous relapse was preceded by an unstable period during which she relocated from the Gold Coast to Brisbane and commenced studies for a Law Degree.  Her daughter M was seven years old at the time.  By way of contrast, this time Ms Reardon has a realistic Relapse Prevention Plan in place, part of which involved changing her course of study from Law to Community Service at TAFE. She is also engaged with Narcotics Anonymous on a much more intense basis than she had been in 2003.
  6. [39]
    Ms Reardon commenced part time employment in August 2015 as a Support Worker at the Moonyah Detoxification Unit run by the Salvation Army where she works approximately 38 hours a fortnight.  Ms Vicki Yates, Clinical Nurse Manager at the Moonyah Detox Unit, was the person responsible for offering Ms Reardon the position. Ms Yates has known Ms Reardon for about 10 years and said that it was an indication of the “exceptional regard” in which she held Ms Reardon that, in the 8 years prior to Ms Reardon’s employment she had never sought out and offered a previous client employment in the Detoxification Unit.
  7. [40]
    The evidence from Ms Reardon, Mrs O'Brien and from Ms Reardon’s daughter M, indicated that Ms Reardon was acutely aware of how her past life of drug addiction had affected her daughter and their relationship. M gave evidence that she has recently moved back to live with her mother and that for the past three or so years, they have been working on building a mother/daughter relationship.  This was complemented by evidence from Dr O'Regan, who referred to Ms Reardon’s “profound insight” into the nature of her drug use and offending history to a level rarely seen even in those with many years of abstinence/recovery. In his opinion her motivation to remain in recovery from active addiction is sustained by her awareness of the disastrous consequences of past relapses. Mr Patrick O'Regan, Social Worker, also referred to Ms Reardon’s “high degree of insight as to the impact of her past drug use and associated criminal behaviour”.
  8. [41]
    Many of the witnesses also spoke of Ms Reardon’s insight into the nature of drug addiction and the causative and preventive factors for it.  It became clear from the evidence that Ms Reardon has a daily recovery programme that she adheres to.
  9. [42]
    Mr Edward Allen, who has had 29 years of professional involvement with Narcotics Anonymous, gave evidence that Ms Reardon had made a “remarkable and rare commitment to change” and to protecting that change. He did not see hers as a haphazard recovery but one which had structure and strong support and which showed an “exceptional commitment to recovery”.  However, Mr Allen also stated that while Ms Reardon had moved on from her past of active addiction, that the minimum period of abstinence before a person could be considered not at risk of relapse was, in his experience, 5 years. The relatively short period of abstinence was also acknowledged by Dr O'Regan who said: “While Ms Reardon has only been totally abstinent for two years and three months, I believe that she has built a very solid foundation and is doing everything possible to mitigate against the chance of relapse”.
  10. [43]
    Dr O'Regan and Mr Patrick O'Regan were both of the view that Ms Reardon presented no risk to children while she remained in recovery. Further Dr Simon Murray, her General Practitioner, stated that she is “inherently a decent person and I believe of no risk to children at all.”  I understand the evidence of her specialist, general practitioner and social worker to mean that at the present time, when the applicant is not taking drugs, there is no risk that she will cause harm to the best interests of children.
  11. [44]
    The applicant submitted that:[32]

The essence of my case is that exceptional case in the legislation must be intended to be measured in terms of being exceptional by reference to a person who has committed the disqualifying serious offence and consequently their efforts in changing their lives as a result of that offence and the associated lifestyle….Each professional witness swore to a clinical observation that I was not a risk of harm to children and that my life and approach to changing it were exceptional.

  1. [45]
    The applicant further submitted that she was not her past and that she aspired daily to live a life guided by the principles of “self honesty, acceptance, patience, hope, faith, courage, integrity, willingness, forgiveness, perseverance, discipline, unconditional love and service to others.”[33]
  2. [46]
    Finally, the applicant referred to having spent $9 000 having undertaken a course which she may now not be able to complete. 

The respondent’s evidence and submissions

  1. [47]
    In assessing whether there is a risk of harm, the respondent applied the evaluative approach endorsed by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher which involves identifying and balancing “risk” factors with “protective” factors arising from the circumstances of the particular case.  
  2. [48]
    In applying that approach, the respondent identified the following factors:

Protective factors

  1. (1)
    The applicant has taken a proactive approach to rehabilitation seeking professional assistance from a number of specialised services in order to address her drug addiction
  2. (2)
    She has expressed a strong desire and commitment to continue living a changed life and this is evident in her written and oral evidence and supported by the evidence of the witnesses
  3. (3)
    She gave evidence that she will continue to engage intensely with her support system including continues involvement with Narcotics Anonymous and her treating team of medical professionals
  4. (4)
    It was apparent from the applicant’s oral evidence that she has substantial insight into her offending and the impacts her offending has had on others. She expressed genuine remorse and shame regarding her criminal history and her interactions with the Department of Child Safety. She was cognisant of how her drug use had affected her life and, in turn, how it had impacted on her daughter. She was able to list a number of negative impacts it had had on her daughter and this reflected a positive level of insight which is a protective factor.
  5. (5)
    It was apparent from the applicant’s evidence that she has engaged in a significant degree of self reflection and she reports she has undergone a degree of self-healing addressing the reasons why she turned to drugs and continued to return to drugs. She identified a number of tangible strategies she has in place to avoid relapse.
  6. (6)
    She has been proactive in planning ahead for her upcoming surgery in regards to pain management without the use of opiates which in the past has been her drug of choice.
  7. (7)
    She has an extensive support network of organisations to assist her in her journey including medical professionals and persons skilled in the area of drug and alcohol addiction who are well placed to provide her with targeted ongoing support. The witnesses spoke positively of the applicant and of her commitment to recovery. They almost invariably identified her as falling within a category of persons most committed to change and to sobriety. The professionals who work in drug and alcohol abuse organisations gave evidence that this level of commitment is rare in their experience.
  8. (8)
    She is engaged in steady, gainful employment and she contributes in a sportive way to the community through this work which utilises her experience and skill set. She is also engaged in personal and professional development through tertiary study.
  9. (9)
    She reports a positive relationship with her daughter which continues to grow and this is confirmed by the evidence of her daughter.
  10. (10)
    As a whole it is apparent that she has achieved a number of personal gains in recent years and for this she should be commended.

Risk factors

  1. (11)
    The applicant has an extensive criminal history spanning a period of ten years from 1999 to 2009 and it includes convictions for property offending, dishonesty based offending and drug offending including supplying dangerous drugs in a correctional facility. This offence is categorised as a serious offence under the Act. The applicant was sentenced to 6 months imprisonment for this offence which is considered a significant penalty reflecting the gravity with which the court viewed her offending behaviour.
  2. (12)
    The applicant has an extensive history of alcohol abuse and drug addiction including a number of relapses some of which were short and others which lasted much longer.
  3. (13)
    The material from the Department of Child Safety outlines extensive involvement with the applicant and her child between 1998 to 2009 including 5 child concern reports and 6 child protection notifications. Two of the notifications were recorded as substantiated outcomes of harm caused to the applicant’s child as a result of her neglect. As a whole, the material reflects adversely on the applicant’s ability to meet the needs of her child due to her drug and alcohol abuse.”
  1. [49]
    The respondent submitted that overall the risk factors outweighed the protective factors and that, given the paramountcy of the best interests of children, that this was not an exceptional case.  In short, the respondent submitted that the period of abstinence was too short when viewed in the context of drug use, alcohol abuse and dysfunctional behaviour over a significantly longer period of time. 

Is this an exceptional case

  1. [50]
    The factors in s 226(2) are factors which must be considered in assessing the risk involved in giving someone, with a conviction of the type of offence committed, a blue card. In looking at the nature of the offence, sentence imposed and when it occurred the Tribunal is, in effect, assessing the degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment and the likelihood of any such future risk materialising.[34]
  2. [51]
    In terms of the level of satisfaction required, it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[35]
  3. [52]
    Looking at the factors which must be considered, I make the following observations: there was a conviction; it was a conviction for a serious offence but not a disqualifying offence. The offence was committed on 31 January 2005 when the applicant was 34, now over ten years ago.
  4. [53]
    In some circumstances the passage of a lengthy period of time without further offending may be a factor favourable to the applicant. It will not of itself constitute an exceptional circumstance but is a factor to be taken into account.[36] In Ms Reardon’s case however, although it has been more than ten years since the serious offence was committed, other drug related offences were subsequently committed. This is relevant and negatives any reliance on the passage of time as a factor in Ms Reardon’s favour. Further, at the time of the relevant offence Ms Reardon was 34 years old. She was an adult and fully responsible for her actions. It was not a crime which could be dismissed as immature folly.
  5. [54]
    The offence did not occur in the course of child-related work and did not involve children.  It involved the supply of dangerous drugs to an adult male inmate, known to the applicant, at a correctional centre. However, although the nature of the offence may not potentially have as direct an impact on the best interests of children, as for example offences of a sexual nature against children, I find that the offence of aggravated supply is nonetheless significant. It is relevant to employment that may involve children because it indicates that Ms Reardon had access to dangerous drugs while her willingness to supply them in a surreptitious way and in deliberate defiance of the due administration of justice obviously goes to her character as it was in 2005. This conduct has particular relevance when seen in the context of her addiction to and use of drugs in the past.
  6. [55]
    A 6 month term of imprisonment was imposed by the court.
  7. [56]
    In terms of anything else reasonably relevant to the commission of the offence, I take note of the impact the conviction and lifestyle associated with drug addiction had on Ms Reardon’s daughter. The extent of the impact was evident from material obtained from the Department of Community Services. The material indicates that the applicant, while suffering from her addiction, was unable to provide a safe environment or to care properly for her own child.
  8. [57]
    The offence should not be viewed in isolation but in context as one of a series of offences relating to drug use over a prolonged period (in excess of ten years) which, although not directly relating to children, suggests a pattern of high risk behaviour which I find would place children at risk of neglect and offer a poor role model.
  9. [58]
    Finally the fact that the applicant’s drug use has continued since the relevant offence, up until approximately 2 and a half years ago, is relevant. In essence it is this, the risk of relapse to substance use, which at a fundamental level, gives rise to the risk of harm to children. I am satisfied that for so long as the applicant is free of drugs there is no risk of harm to children from her.  However, the sensible possibility of relapse can not at this stage be discounted, and the consequences of a relapse could be very serious for any child then under her care or supervision. I am conscious, in particular, of evidence which suggested that a period longer than 2 years abstinence would be necessary before one could have confidence that a relapse would not occur. That is not to say that Ms Reardon will never be in a position, successfully, to apply for a blue card. It will be apparent from my reasoning that I consider that there may be a time in the future when an application for a blue card may be favourably considered.
  10. [59]
    As noted above, the Appeal Tribunal has held that any hardship or prejudice caused to the applicant are not relevant considerations. Even if they were, I am not satisfied that the applicant’s expenditure on a course which she may now not complete would, by itself, or together with the other matters relied upon by the applicant, cause the present circumstances to amount to an exceptional case.
  11. [60]
    The factors in s 226(2)(b)(c)(d) do not apply.

Conclusion

  1. [61]
    In applying the factors, on balance I am not satisfied that this is an exceptional case in which it would not harm the best interests of children for a blue card to be issued. 
  2. [62]
    In my view, the factors when applied to the facts do not take the case out of the realm of ordinary or usual to exceptional. In order to issue a positive notice I would need to be satisfied that the factors when applied would lead me to conclude that there would, on the balance of probabilities, be no risk of harm to the best interests of children if Ms Reardon was to be able to work with them. While I formed the impression that Ms Reardon was a kind hearted, loving person who was genuinely committed to living her life drug free, I am not satisfied, at this point in time, that Ms Reardon will not relapse and resort to the patterns of behaviour that characterised her life in the past. I note in this respect that a period of 2 and a half years abstinence is considered to be in the early stages of recovery and that part of that time included supervised time spent in the Moonyah program which Ms Reardon completed in June 2014. It is only from then that Ms Reardon has been living independently and unassisted in the community.
  3. [63]
    I acknowledge Ms Reardon’s evidence that she has commenced part time employment, tertiary study, is abstaining from drug use, that she has a positive level of insight into her offending and its impacts on others and is developing a positive relationship with her daughter. However, these factors do not make the applicant’s case “exceptional”.  Living a changed life in a law abiding manner as society expects can not, without more, constitute an exceptional case.[37] 
  4. [64]
    The risk is that Ms Reardon may relapse. Everything else flows from that.  I do not need to find that Ms Reardon will relapse, only that there is a risk she might and that if she did, it would harm the best interests of children for her to be working with them.[38]
  5. [65]
    This is distinguishable from a case where a person had a drug problem for a few years and was rehabilitated. This is a case where the applicant’s drug addiction was chronic. It lasted many years and led to serious criminal offending as a result of the lifestyle associated with drug use. Ms Reardon’s drug use and associated lifestyle also had a significant impact on her daughter, including being impacted by the applicant’s absence while incarcerated, by exposure to drug use and drug affected persons and by substantiated outcomes of neglect as recorded by the Department of Communities and Child Safety.
  6. [66]
    Unlike equivalent legislation in other States, the factors to be applied are not exhaustive. In terms of detriment to the applicant, the applicant has spent money undertaking a course at TAFE which she may not now be able to complete.  Unless TAFE is able to successfully apply for an exemption notice on Ms Reardon’s behalf to enable her to complete the course,[39] Ms Reardon will suffer financially and emotionally. I find that, even if these considerations were to be considered, they are subordinate to the best interests of children and are not sufficient, even in combination with other factors, to amount to an exceptional case.
  7. [67]
    In this respect it is also noted that there is no power to impose reasonable conditions on the issue of a blue card in Queensland. The unconditional nature of the blue card is in that respect a relevant factor as the blue card will allow the applicant unsupervised and unfettered access to children in a range of regulated activities including foster care, family day care of multiple infants and toddlers and homestays for young people. A positive notice and blue card is fully transferable and unconditional.
  8. [68]
    I acknowledge the admirable progress Ms Reardon has made to overcoming her addiction and past ways. However, it is the welfare and best interests of children, who may be under her care, which is the paramount consideration. The evidence suggests that Ms Reardon has led a very dysfunctional life for almost all of her adult life. She has experienced drug addiction on a long term basis and this has impacted upon her ability to provide a stable, consistent and protective environment for a child in her care. It is acknowledged Ms Reardon is committed to continue to live her life drug free. I find that she has a profound level of insight into the impact her past life has had on her daughter and that this, coupled with her desire to strengthen her relationship with her daughter, is a significant motivating factor in her rehabilitation. However, while this is commendable, in contrast to her past, Ms Reardon has lived in a normal, functioning, law abiding manner for a very short period of time when viewed in the context of the extent of her previous lifestyle.
  9. [69]
    Accordingly, I find that Ms Reardon’s case does not fall into the category of being exceptional such that it would not harm the best interests of children for her to be issued with a positive notice and blue card at this particular time.
  10. [70]
    I order that the application for review be dismissed.

Footnotes

[1]Working with Children Act, s 162(2).

[2]Working with Children Act, s 169.

[3]Working with Children Act, s 354(1).

[4]Working with Children Act, s 353(a)(i).

[5]Queensland Civil and Administrative Act 2009 (Qld), s 19.

[6]Queensland Civil and Administrative Act 2009 (Qld), s 20.

[7]Working with Children Act, s 5.

[8]Child related employment decision is defined to include a chapter 8 reviewable decision:   Working with Children Act, s 358.

[9]Working with Children Act, s 360. See also s 6.

[10]Working with Children Act, s 221.

[11]Working with Children Act, s 225.

[12]Working with Children (Risk Management and Screening) Act 2000, s 167(1).

[13]Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 at [162].

[14]Drugs Misuse Act 1986 (Qld), s 6.

[15]Working with Children Act, Schedule 2, column 3.

[16]Drugs Misuse Act 1986, s 6(2)(d).

[17]Working with Children Act, s 225(2).

[18]Working with Children Act, s 3.

[19]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [4].

[20]Maher at [34] citing Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.

[21][2004] HCA 45; (2004) 223 CLR 513 at 573 cited in D and Department for Community Development [2007] WASAT 154

[22][1999] UKHL4; [2000] QB 198 at 208.

[23]See further Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [46] where it was held: “The proper inference to draw from the Commission Act must be that it would harm the best interests of children for persons with convictions for that offence to work with children unless it is an exceptional case.”

[24]Kent v Wilson [2000] VSC 98 at [40].

[25]{2015] QCA 166 at [54].

[26]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [42] although concerned with an earlier version of the Act; Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [23]. This is contrary to the position under the Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(8) which exhaustively lists the considerations to be applied: Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 at [16].

[27]Working with Children Act, s 360.

[28]Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171.

[29]See for example, Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(8).

[30]AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 relying on Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171. 

[31]Dr Simon Murray, General Practitioner.

[32]Applicant’s Closing Submission dated 25 November 2015.

[33]Ibid.

[34]It has been held implicit in the purpose and scheme of the Working with Children Act that the risk of harm to children is relevant to determining whether an assessment notice should or should not be issued: Chief Executive Officer, Department for Child Protection v Scott [No 2} [2008] WASCA 171 at [19].

[35]Maher at [30].

[36]Lu v Chief Executive Officer, Department for Child Protection [2013] WASAT 69 at [37].

[37]See above at [28]; Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27

[38]Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153

[39]Working with Children Act, s 260(2).

Close

Editorial Notes

  • Published Case Name:

    Reardon v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    Reardon v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 61

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    08 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248
2 citations
Jump To
Cite 1 - [2012] QCATA 248
Cite 2 - [2012] QCATA 248
Baker v R (2004) 223 CLR 513
2 citations
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Cite 1 - (2004) 223 CLR 513
Cite 2 - (2004) 223 CLR 513
Baker v The Queen [2004] HCA 45
1 citation
Jump To
Cite 1 - [2004] HCA 45
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28
2 citations
Jump To
Cite 1 - (2008) WASCA 28
Cite 2 - (2008) WASCA 28
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
5 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Cite 3 - (2008) WASCA 171
Cite 4 - (2008) WASCA 171
Cite 5 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
4 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Cite 4 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
4 citations
Jump To
Cite 1 - [2014] QCATA 27
Cite 2 - [2014] QCATA 27
Cite 3 - [2014] QCATA 27
Cite 4 - [2014] QCATA 27
Commissioners of Customs and Excise v Redrow Group plc [1999] UKHL 4
1 citation
Jump To
Cite 1 - [1999] UKHL 4
D and Department For Community Development [2007] WASAT 154
2 citations
Jump To
Cite 1 - [2007] WASAT 154
Cite 2 - [2007] WASAT 154
Department for Child Protection v Scott [No 2] [2012] WASAT 153
2 citations
Jump To
Cite 1 - [2012] WASAT 153
Cite 2 - [2012] WASAT 153
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
Lu v Chief Executive Officer [2013] WASAT 69
2 citations
Jump To
Cite 1 - [2013] WASAT 69
Cite 2 - [2013] WASAT 69
R v Brown [2004] QCA 4
1 citation
Jump To
Cite 1 - [2004] QCA 4
R v GAW [2015] QCA 166
2 citations
Jump To
Cite 1 - [2015] QCA 166
Cite 2 - [2015] QCA 166
R v Kelly (Edward) (2000) QB 198
1 citation
Jump To
Cite 1 - (2000) QB 198
Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] 1 VR 1
1 citation
Jump To
Cite 1 - [1983] 1 VR 1

Cases Citing

Case NameFull CitationFrequency
Brown v Director-General, Department of Justice and Attorney-General [2018] QCAT 2232 citations
Commens v Director General, Department of Justice and Attorney-General [2017] QCAT 22 citations
1

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