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GHS v Director-General, Department of Justice and Attorney-General[2017] QCAT 39

GHS v Director-General, Department of Justice and Attorney-General[2017] QCAT 39

CITATION:

GHS v Director-General, Department of Justice and Attorney-General  [2017] QCAT 39

PARTIES:

GHS

(Applicant)

v

Director -General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML187-16

MATTER TYPE:

Children's matters

HEARING DATE:

30 and 31 January 2017

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

14 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision dated 12 July 2016 that GHS’s case is ‘not exceptional’ is set aside and replaced with the Tribunal’s decision that there is an exceptional case.
  2. The Tribunal prohibits the publication of any information, which may identify GHS and his family.
  3. The reasons for decision are to be published in a de-identified format only. 
  4. The Registry is directed to send the decision together with the reasons for decision to the parties by email.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – Blue Card – where applicant convicted of a ‘serious offence’ – whether there is an exceptional case to replace the presumption that a negative notice should issue –  where significant protective factors - whether a non-publication order ought to be made to avoid endangering the health or safety of a child

Working With Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 225, s 226, s 353, s 354, s 358, s 360

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66

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

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

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

Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243

RPG v Public Safety Business Agency [2016] QCAT 331

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

FMA v Chief Executive Officer, Public Safety Business Agency (No 2) [2016] QCAT 381

APPEARANCES:

APPLICANT:

GHS

RESPONDENT:

Director- General, Department of Justice and Attorney-General

REPRESENTATIVES:

APPLICANT:

GHS in person

RESPONDENT:

represented by Mr I McCowie, Legal Officer

REASONS FOR DECISION

  1. [1]
    GHS applied for a positive notice or ‘Blue Card’ under the Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act).  On 12 July 2016, the Respondent refused the application and issued a negative notice because the Respondent decided GHS’s case was not ‘exceptional’.  GHS seeks review of the decision.
  2. [2]
    Significantly, GHS was convicted of a ‘serious offence’ in 2011.  The offending conduct occurred in 2007 and 2008.  The Respondent is required to issue a negative notice if the Respondent is aware that the person has been convicted of a serious offence[1]  unless the Respondent is satisfied it is an exceptional case in which it would not harm the best interests of children to issue a positive notice.[2]  
  3. [3]
    The Appeal Tribunal has previously observed that even if the particular serious offence is not one intrinsically an offence against children 

the proper inference to draw from the ..Act must be that it would harm the best interest of children for persons with convictions for that offence to work with children unless it is an exceptional case.[3]

  1. [4]
    The Respondent’s decision was that GHS’s case was not exceptional.  Such a decision is a chapter 8 reviewable decision under the Act, which the Tribunal may review.[4]  
  2. [5]
    The Tribunal is to consider the matter afresh and decide the matter on its merits.  The purpose of the review is to produce the correct and preferable decision.[5]    In such a review proceeding, I may confirm or amend the decision, set aside the decision and substitute my own decision or set aside the decision and return it to the decision maker with or without directions.[6]

Is GHS’s an ‘exceptional’ case, whereby the issuing of a positive notice would not harm the best interests of children?

  1. [6]
    I find that GHS’s case is ‘exceptional’.  The decision of 12 July 2016 should be set aside and replaced with the Tribunal’s decision.
  2. [7]
    The object of the Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through risk management strategies and screening persons employed in particular employment.[7]    The Act is to be administered having regard to the principles that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[8]  
  3. [8]
    The decision under review is a child-related employment decision.[9]  Such decisions are to be reviewed under the principle that the welfare and best interests of a child are paramount.[10]
  4. [9]
    The Act does not define what is an ‘exceptional case’.  The Court of Appeal provided some guidance in Commissioner for Children and Young People and Child Guardian v Maher & Anor.[11]  The Court of Appeal accepted that identifying and weighing risk factors and protective factors was an appropriate approach and found that it would be unwise to lay down any general rule, as each case is to be determined on its own facts and circumstances.
  5. [10]
    GHS is enrolled in a Bachelor of Health Science course and seeks a Blue Card to enable him to undertake clinical observation subjects because children may attend the clinic.  In this context, GHS will be supervised.  However, the Act does not provide for issuing of a positive notice subject to conditions.   If a positive notice is granted, the holder is allowed unsupervised access to children in a range of regulated activities.    Blue Cards are valid for a 3 year period, subject to a cancellation process, at which time they are subject to a renewal application where the applicant’s circumstances are reconsidered.
  6. [11]
    Section 226 of the Act sets out mandatory considerations to which regard is to be had, when deciding whether there is an exceptional case, where the person has been convicted of or charged with an offence.  I address the considerations below.
  7. [12]
    GHS has also been charged with and been convicted of a number of offences over the period 1994 – 2011. 
  8. [13]
    GHS was convicted of a ‘serious offence’ i.e. trafficking in dangerous drugs.  The offending took place in 2007 and 2008.  GHS co-operated, plead guilty and was sentenced in December 2011 to 6 years’ imprisonment. 
  9. [14]
    At the same time, GHS was convicted:
    1. of two counts of possessing dangerous drugs.  The offending took place in May 2004 and April 2011.  GHS co-operated, plead guilty and was sentenced in December 2011 to 12 months’ imprisonment for each count. 
    2. of possessing dangerous drugs and utensils.  The offending took place in May 2005 and October 2005.  GHS co-operated, plead guilty and in December 2011, a conviction was recorded but no further punishment was imposed.
  10. [15]
    The criminal history information revealed a number of other convictions:
    1. in March 2000:
      1. a number of counts for possessing dangerous drugs and utensils.  The offending took place between 1997 and 1999.
      2. for supplying a dangerous drug to a minor, his then girl-friend.  The offending took place between 1996 and 1998. 
      3. for supply of dangerous drugs. The offending took place between 1998 and 1999.
      4. for producing dangerous drugs.  The offending took place between 1998 and 1999.
      5. for possessing property suspected of being the proceeds of an offence. The offending took place in January 1999.
      6. conviction was recorded on all charges and GHS was sentenced to 3 years imprisonment.  The evidence is that GHS was not incarcerated but rather undertook a 9 month non-custodial work programme.
    2. in April 1994 for possessing dangerous drugs and utensils.  The offending took place in March 1994.   No conviction was recorded and fines in the amounts of $450 and $150 were imposed.
  11. [16]
    The passage of time since allegations or convictions is not determinative of the seriousness of the conduct and therefore is not determinative of whether or not a case is ‘exceptional’.[12]
  12. [17]
    The Respondent submits that the following risk factors are present:
    1. GHS was convicted of supplying drugs to a minor in 1999 (his then girlfriend) and trafficking a dangerous drug in 2011, the latter a ‘serious offence’.
    2. GHS’s offending escalated from use, to production to trafficking.
    3. GHS played a substantial part in the trafficking scheme.
    4. at the time of the trafficking offence, GHS gave no thought to the potential for children to be harmed.
    5. the 2011 conviction for possession while on bail for the trafficking offence casts doubt on GHS’s judgement and his ability to keep away from an involvement with drug.
    6. there is a risk that GHS will relapse noting there have previously been periods of some years between offending.
  13. [18]
    The evidence is, and I accept, that GHS is a loving, caring, calm, patient  and supportive father to his son and ‘step-son’ and has positive relationships with multiple other children including his current partner’s and siblings’ children. 
  14. [19]
    The 2011 Judge’s sentencing remarks were in evidence before me to enable me to have regard to the mandatory matter set out in s 226(2)(a)(v) of the Act.[13]   The sentencing remarks indicate he was eligible for parole at 23 March 2014.  The evidence is that he was released on parole shortly thereafter in early April 2014 indicating he cooperated and did not further offend while in prison. 
  15. [20]
    No information or reports in relation to GHS as described under section 226 (2)(b) – (d) of the Act nor reasons for decisions in respect of GHS’s previous convictions were in evidence before me.
  16. [21]
    GHS gave evidence that his offending was largely attributable to his significant addiction to cannabis, although he acknowledges an element of greed played a part.   
  17. [22]
    The evidence is, and I accept, that since 2008 GHS has taken significant steps to address his addiction to cannabis. 
  18. [23]
    GHS has demonstrated significant insight into the wrongfulness of his offending behaviour and the harm that such behaviour causes to its victims, families, children and the community.  GHS has also demonstrated significant insight into the triggers, which lead to his drug use and offending.  
  19. [24]
    A large number of witnesses provided written references, the references were given with knowledge of GHS’s criminal history and many of the witnesses were available to give oral evidence, be cross-examined by the Respondent’s representative and to be questioned by me during the hearing.  In addition, I permitted a number of witnesses to give oral evidence, who had not provided written references, including GHS’s mother, with whom GHS resides and his parole officer.
  20. [25]
    GHS also provided a written psychological assessment.  The psychologist was available to give oral evidence, be cross-examined by the Respondent’s representative and to be questioned by me during the hearing.  Significantly, she concluded[14] that GHS:
    1. presents a low risk of reoffending;
    2. is a low risk to children in the community;
    3. presents with a number of protective factors that indicate a positive prognosis for GHS to live a law-abiding and prosocial life.
  21. [26]
    The evidence is, and I accept, that:
    1. GHS was a driven teenager who excelled at his then chosen profession.  Older colleagues introduced him to cannabis, which he first used socially and then became reliant upon so that he could sleep after working up to 16 hours a day. He then turned to selling drugs to fund his significant addiction.
    2. At various times GHS’ drug use lessened or stopped but circumstances lead him to using occasionally, which lead to escalation of use and further offending.  GHS did not then have an awareness, as he does now, that he was incapable of maintaining ‘occasional’ use.
    3. In 2008, GHS voluntarily undertook a rehabilitation programme.  Relevantly his son was born about this time.  After completing about 8 months, he worked in the centre in exchange for ongoing rehabilitation and completed approximately 18 months in total.  A certificate of completion was in evidence before me.[15]
    4. In 2008, as part of the rehabilitation programme, he developed a relapse management plan, which he updates as circumstances change. 
    5. While in the rehabilitation programme, he received acupuncture, which assisted him.
    6. Whilst incarcerated he attended the prison Alcoholics Anonymous group regularly as no  Narcotics Anonymous group was available.
    7. Since his release from prison he regularly attends Narcotics Anonymous and gives and receives support through this group.  He has a current sponsor.  He also gains insight into how drugs adversely impact on the community.
    8. GHS has commenced studying for a Bachelor of Health Science so that he can change careers and become an acupuncturist so that he can help others.
    9. He has developed strategies to better manage stress, which he recognises was a trigger for drug use, including better eating and exercise habits and using a journal to record reflections.
    10. Since released on parole he has undertaken a 12 week relapse prevention programme.
    11. GHS has developed better assertiveness skills. 
    12. GHS has not sought to minimise his offending.
    13. GHS has created a new balanced lifestyle.
  22. [27]
    GHS’s evidence is that he has not taken illicit drugs since February 2008.  There is no evidence before me, which suggests this is not true.  Since being released on parole, almost 3 years ago, he has been subjected to random drug tests, which have all been negative.  GHS will remain on parole until November 2019 and will continue to be subjected to random drug testing. 
  23. [28]
    GHS acknowledges the significant lapse in judgement, which lead to his arrest in 2011 for possession and gave evidence that he has developed an awareness and skills to put himself first so that he protects people close to him rather than helping others to his detriment.
  24. [29]
    A number of the witnesses gave evidence of GHS’s personal growth over the years they have known him.  I accept that he has and seeks the support of his parents,[16] sister, current partner, former partner (mother of his son), his parole officer and a number of friends, some of whom currently work or previously worked in child related employment.
  25. [30]
    I regard the steps taken by GHS since 2008 and the support GHS seeks and receives are substantial protective factors.
  26. [31]
    There is no evidence that GHS has behaved inappropriately with children or young people other than the conviction in relation to supply of cannabis to a minor, his then girlfriend.[17]  In this regard, the evidence is that his girlfriend used illicit drugs prior to her involvement with GHS and that overall she regards GHS as a very positive influence in her life.
  27. [32]
    I accept that he has demonstrated ability to handle situations of significant  stress without resort to drugs, including:
    1. being arrested, sentenced and imprisoned in 2011;
    2. while incarcerated successfully defending a deportation decision;
    3. the break-up of his relationship with the mother of his son;
    4. this review proceeding commenced in July 2016 following his application for a blue card in August 2015.
  28. [33]
    The Appeal Tribunal has previously found that an applicant making changes to their life such that they are now living life ‘in a law abiding manner as society expects[18] is insufficient to make their case exceptional. GHS submits that he is not just a law-abiding citizen now but that he has changed the way he thinks and feels. 
  29. [34]
    In contrast to the finding’s in Ram:
    1. GHS has not sought to minimise the impact of his offending on his victims;
    2. GHS has displayed significant insight into how his offending affected others;
    3. I do not have any reservations about the frankness of GHS’s evidence;
    4. There is evidence that GHS has had significant positive interactions with children.
  30. [35]
    Weighing all of the protective factors in this matter against the risk factors, I am satisfied that this is an exceptional case where it would not harm the best interests of children to issue a positive notice. 
  31. [36]
    The Respondent submits that if I am minded to set aside the Respondent’s decision that the order should be framed in the form proposed by Carmody J in RGP v Public Safety Business Agency.[19]  Member Howard has recently made some observations, in relation to the power of the Tribunal to make additional orders including in relation to the setting aside of the decision to issue a negative notice.[20]  GHS did not make submissions in relation to this issue.  Accordingly, this issue was not fully argued before me.  In these circumstances, I do not further consider my ability to make ancillary orders.

Non-publication order

  1. [37]
    During the final submissions, GHS requested that I make a non-publication order to protect himself and his son from identification in these proceedings.  There is a presumption that Tribunal decisions are made and reported in a transparent way.  However, that presumption may be rebutted in certain circumstances.[21]   The Respondent did not oppose the making of such an order. 
  2. [38]
    I accept that the publication of these reasons in a way, which identifies GHS will necessarily identify his son, a pre-teen child and that there is a risk that this will endanger the physical or mental health or safety of a child.  I therefore find that the reasons ought to be published in a de-identified form.     

Footnotes

[1]Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act), s 225(1)(c).

[2]The Act, s 225(2).

[3]Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [46].

[4]The Act, s 353, s 354.

[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 (QCAT Act).

[6]Ibid, s 24.

[7]The Act, s 5.

[8]Ibid, s 6.

[9]Ibid, s 358.

[10]Ibid, s 360.

[11][2004] QCA 492.

[12]Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243.

[13]Exhibit 18.

[14]Exhibit 19 at [6.7].

[15]Exhibit 17 at PSBA- 053.

[16]He currently resides with his parents.

[17]The criminal history reveals that this conduct occurred between 1996 and 1998.

[18]Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [47].

[19][2016] QCAT 331 at [28].

[20]FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210; FMA v Chief Executive Officer, Public Safety Business Agency (No 2) [2016] QCAT 381.

[21]QCAT Act, s 66.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2017] QCAT 39

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    14 Feb 2017

Appeal Status

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

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