WTK[2017] QCAT 468

REASONS FOR DECISION

Background

1. [1]
   The Applicant has applied for a review of a reviewable decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the WWC Act).
2. [2]
   The Applicant was previously issued with a positive notice and blue card on 20 January 2015 pursuant to the WWC Act.
3. [3]
   The Respondent was subsequently advised by The Queensland Police Service of a change in police information relating to the Applicant.
4. [4]
   The Respondent proposed to issue the Applicant with a negative notice and so invited the Applicant to make submissions about whether or not there is an exceptional case for the Applicant.
5. [5]
   On 6 December 2016, after reassessing the Applicant’s eligibility, the Respondent’s positive notice was cancelled.

WTK

6. [6]
   WTK stated that she was not a violent person and had extensive positive work with children.
7. [7]
   WTK informed the Tribunal that she was a victim of an attempted sexual abuse.  She had her drink spiked and had been pushed over and was concussed.  When Police arrived, she was taken into custody for her own safety.  Police alleged that she was abusive and assaulted Police.
8. [8]
   She produced a CD, which contained video footage of her time in the watch house that does not appear to support the Police convictions that lead to her being charged.
9. [9]
   WTK claimed to be concussed and under the influences of a drug.  The video does show a person struggling to do anything and is consistent with her version of the surrounding circumstances.
10. [10]
    WTK said that she was normally good at managing conflict.
11. [11]
    WTK stated that she wanted to teach photography to children and others.  She had a great relationship with the indigenous people and was using her skills in anthropology and photography to help this community.
12. [12]
    She is a qualified English teacher and has done home schooling of children.  In Thailand, she was working with children in non-government organisations.
13. [13]
    She told the Tribunal that she had been diagnosed with Post Traumatic Stress Disorder (PTSD) from an incident and was now fully recovered.
14. [14]
    The Police thought in relation to the offence in October 2015 that she was intoxicated as she had difficulty communicating with them because she had been drugged.  When she could not provide an address, they took her in to the watch house.
15. [15]
    WTK swears that the CD shows that she was not in a good state and that there were eight (8) officers pulling and pushing her.  The CD does not show her assaulting anyone.
16. [16]
    WTK said that she had 3 ½ glasses of wine on the night and had been all right until she had a sudden attack of nauseousness and went to the toilet to throw up.  She does not have a very good recollection of what happened after that.
17. [17]
    She went through the process of obtaining the CD because she did not have a memory of the events and did not believe she had acted in the way alleged.
18. [18]
    WTK in relation to alcohol said that she managed her alcohol consumption.
19. [19]
    WTK told the Tribunal that she had not been intoxicated at work.  She might have a couple of drinks at night or she might not drink at all for several weeks.
20. [20]
    She explained the circumstances around her drink driving charge.
21. [21]
    WTK told the Tribunal that she lived a healthy lifestyle, does yoga, swimming, has a good circle of friends, there is no conflict in her life, does not take drugs, does not drink alcohol to excess, she had served her probation without any problems, she is active in her community.
22. [22]
    She is an anthropologist by training and is helping the indigenous community document their culture.  She has been working with the dance troupe.  She has supported two publications.
23. [23]
    In relation to children, she says that she is friendly with children, has taught children over many years, none of her offences involved or affected children, taught in primary schools in Thailand, taught children horse riding, chooses activities to inspire children, taught children how to swim, worked with children in remote areas of Thailand, and can produce numerous references of the wonderful work she has done with children.
24. [24]
    WTK told the Tribunal that she had experienced conflict in her life that she had to deal with.  She gave as an example a previous relationship that was quite traumatic and involved incident of domestic violence.  She had sought counselling from Centacare over six months to help her deal with the relationship issues.
25. [25]
    WTK informed the Tribunal that she was a victim of an attempted sexual abuse.  She had her drink spiked and had been pushed over and concussed.  When Police arrived, she was taken into custody for her own safety.  Police alleged that she was abusive and assaulted Police.
26. [26]
    The Applicant confirmed that she had sought out treatment through her psychologist. She saw Dr BJ over a six-month period. The Applicant told the Tribunal that she had situational PTSD. She is a small woman and at the time of the offences in October 2015, she was actually concussed.
27. [27]
    When asked about being affected by domestic violence she admitted that many years ago she was engaged to a man who assaulted her and put her in hospital. He left her and she sought out counselling. She said this was many years ago.
28. [28]
    The Applicant was asked about her use of illicit substances. Ms Marunda Haatzari drew the Applicant’s attention to her conviction in 2006.
29. [29]
    The Applicant responded by saying that she did not use illicit substances.
30. [30]
    The Applicant was at an event where there were children. Someone gave her the drug and she put it in her pocket. While she was convicted for possession, she told the Tribunal that she did not do drugs and was opposed to the use of illicit substances.
31. [31]
    When asked about the connection with her offences and the consumption of alcohol she responded by saying yes at the time of the incident she was intoxicated. She stated that alcohol was not the problem such she was placed in a stressful situation. She denied being a violent person. She admitted to being in a couple of situations that went pear-shaped. The Applicant repeated that she was not a violent offender. This is clear from reading the transcript and watching the CD. She said the offences were dealt with before she got the CD because she was under pressure to resolve the charges because she wanted to go to Mexico on a trip.
32. [32]
    In relation to the 2003 event, she says that she was pushed and blacked out.
33. [33]
    The Applicant denied that alcohol was a contributing factor. She had gone out to a nightclub and was left outside while her girlfriends were inside. Her keys and money were inside and the security guard would not let her in because of the 3am lockout. She felt very vulnerable. When the police came, they grabbed her and she fell and was traumatised. She denied kicking the police.
34. [34]
    The Applicant denied she has an alcohol problem saying that she drank occasionally. The problems she encountered were a year and half ago. The drink driving offence was her responsibility.
35. [35]
    The Applicant told the Tribunal that in relation to the 2015 charges she believes she was drugged with Rohypnol. The CD of the watch house shows she was man handled by a number of police officers, The CD shows her being calm at the start. She was charged with serious assault but the CD shows she did not assault anyone. She said she woke up with bruises to her jaw, head and body.
36. [36]
    She sought out help from Dr BJ after the 2015 incident.
37. [37]
    When asked about strategies she told Ms Haatsari Marunda that she had decided not to drink while in public.
38. [38]
    When asked about anger management the Applicant stated that she was normally very diplomatic. She was drugged and traumatised at the time of the events in October 2015.
39. [39]
    The Applicant told the Tribunal she normally handled herself well in difficult situations. She now goes to public events without drinking. She has always been sober when she worked.
40. [40]
    The Applicant denied an alcohol addiction saying she lead a healthy holistic lifestyle.
41. [41]
    The Applicant told the Tribunal that she had started to get her life back in order. She had dealt with the trauma, adopted strategies and focused on her studies. She has a circle of friends, the support of her parents and is well thought of in the community.
42. [42]
    The Applicant believes that if she was not drugged and concussed she would have handled the situation much better. She told the Tribunal that there was a long period of stability in her life and that there had been no repeat of the behaviour.
43. [43]
    The Applicant told the Tribunal that she was dedicated to the best interests of children. She has an excellent history of working with children and the community. There is, apart from her police charges, no such risk factors.

YM – Social Worker and Coordinator of The Neighbourhood Centre

44. [44]
    The Applicant worked under her direct supervision. The Applicant was very candid with her about her experience with police. The Applicant came to us to do hours under her probation order. She knows the Applicant from her involvement in the community. She is seen as an honest, ethical person who has always demonstrated a respectful attitude to a range of people. There were no incidents with her at the Centre. She presented no such harm or anger. YM told the Tribunal that she has an extensive background working with children and understands the need to be protective of children’s interests and welfare. The only incidents the Applicant has been involved with are with the Police – the most powerful people in the community.
45. [45]
    The Applicant has had a lot of involvement with the community and with children and young people and with local culture. She does not see the Applicant to be a threat to any of these people. She has no hesitation endorsing the Applicant for a positive notice.
46. [46]
    The Applicant is always invited back to participate in community activities. The Applicant has suffered significant trauma – she has developed specific strategies to deal with the issues. YM does not see the Applicant as a threat to children.

Her strengths:

1. developed coping strategies;
2. no recent incidents;
3. worked hard in the community;
4. enjoyed successful studies;
5. has the trust of the indigenous community to document cultural activities;
6. none of the incidents involved children or young people;
7. always respectful and engaged;
8. strong character; and
9. worked hard to move forward.

Her weaknesses: Always talks about overcoming barriers, being proactive working around solutions.

47. [47]
    She supports the Applicant for a blue card.
48. [48]
    The Applicant told her about the incident in Northern Town and the incidents in Townsville. The Applicant told her that she had been drugged and may have lashed out because she was being held down.
49. [49]
    She had talked with the Applicant about her use of alcohol. The Applicant had considered her use of alcohol. She told the Applicant that she could be referred to rehabilitation. The Applicant was of the view that counselling could address the issue. The Applicant was aware that she needed to watch her alcohol consumption. She was aware of her increased anger in situations when she was under the influence of alcohol.
50. [50]
    YM said she had not seen the Applicant express anger. She watched her over 100 hours and she has never acted angry.
51. [51]
    The Applicant was very friendly and respectful towards children. She could not fault her involvement with children. The Centre provides for children and young people and the interaction with the Applicant was very positive.
52. [52]
    She views the Applicant to be a person of very good character committed to her community.
53. [53]
    The Applicant’s photographs have been very helpful to the indigenous community who hold her in high regard. She has the ability to interact positively with various children’s events. She is strongly committed to the local community.
54. [54]
    Whilst at the Centre she used some 400 brochures, the Applicant developed a database. This is an excellent resource for the Centre.
55. [55]
    Northern Town is a regional community with a lack of appropriately qualified staff. She does not pose a threat at all to children; to not have the resource would be a big loss to the community.

Dr BJ - Clinical psychologist

56. [56]
    Dr BJ has been registered as a psychologist since 2005. She was aware of the child protection legislation. The Applicant had talked to her about the incidents in 2015. Dr BJ told the Tribunal that she had provided support for the Applicant around the management of her anxiety and stress. The Applicant was generally able to cope with stress. She undertook meditation and other pursuits such as yoga and photography to reduce stress. The Applicant was able to articulate what she did to properly regulate her emotional well-being and manage issues. She was aware of what she needed to do and the activities that helped.
57. [57]
    The Applicant was originally referred to her through her GP who was concerned how anxious she was. The Applicant disclosed her involvement with the police the contact in September 2015.
58. [58]
    In relation to the second incident, the Applicant was distressed because she had no memory of a large part of the evening and her thoughts were in disarray. She felt that she had been drugged and believes or suspects that her drink was spiked. This would account for the effect on her at the time.
59. [59]
    The Applicant knows that consumption of alcohol reduces her capacity to self-manage; this was one of the matters they had focused on. She believes that the Applicant has developed insight into the effects of alcohol on her behaviour.
60. [60]
    The Applicant is aware that she needs to monitor her emotional well-being. We identified that she needed to be particularly watchful in situations of risk. If other people were inebriated, this might trigger her behaviour.
61. [61]
    The Applicant has clearly used alcohol as a coping strategy in the past. She has however also used other strategies and kept alcohol at a minimum or not at all.
62. [62]
    The Applicant does have a diagnosis of Post Traumatic Stress Disorder often referred to as PTSD. So situational conflict where there are threats or inappropriate behaviour can set off her symptoms. She does have that diagnosis and had been seen by the Community Mental Health Team at the Medical Centre. The Applicant is aware that she will need to manage her symptoms into the long-term. She knows that she needs to work hard to maintain her quality of life. She knows to avoid situations that trigger the condition and to seek early intervention. She knows that she needs to manage her alcohol consumption.
63. [63]
    Dr BJ thinks that the risk of relapse is not high, that the Applicant has been able to manage difficult situations and avoid the triggers well in the community. She is able to use coping strategies and is managing the condition well.
64. [64]
    Dr BJ  sees the risks as follows:

    1. a deterioration in her quality of life;
    2. being unable manage stressors in her life;
    3. not properly venting her emotions;
    4. not properly committing to her relapse prevention strategies; and
    5. placing herself in situations of risk.
65. [65]
    The Applicant needs to be aware of the signs triggers that bring on the symptoms of PTSD. The PTSD when triggered makes her vulnerable to reacting to situations in an inappropriate way. She can respond to conflict with a heightened emotional presentation. Her anxiety and hypervigilance can be exacerbated.
66. [66]
    Dr BJ  sees the protective factors as follows:

    1. the Applicant is a bright lady who was aware of the need to create a safe environment for those around her;
    2. the Applicant is a quite cheerful, creative person, intelligent person. Her focus on photography has brought into contact people of the area. She has helped document their culture. She has earned their trust and respect. She is a talented, outgoing person who gets on well with others and has an interest in indigenous culture; and
    3. the Applicant is a determined person who gets things done. In relation to the recent setbacks, she has taken steps to bounce back. She is resilient and very committed to the project she takes on.
67. [67]
    Dr BJ  sees the Applicant’s weaknesses as follows:

    1. the Applicant is quite sensitive;
    2. the Applicant has had to work to manage stress/conflict;
    3. the Applicant has had to work hard to manage her emotional state; and
    4. the Applicant can be quite focused and miss the basics.
68. [68]
    Dr BJ was asked whether the Applicant was minimising her behaviour. She told the Tribunal that she did not think so. The Applicant occasionally stated that she had her back up against the wall and needed to fight to be heard. The Applicant feels that she was falsely accused. The Applicant is however quite aware of her limitations.
69. [69]
    A big factor in support of the Applicant is that she is instilled with Buddhist values, which involve respect for others and all of nature. This interest is cross-cultural. These are strongly held views. She has been managing her stress factors fairly well. She has seen her interact in a positive way with others. The Applicant is well known through the community. This includes being trusted and respected by the indigenous people. She is a resource community and she supports the Applicant receiving a positive notice.

HN

70. [70]
    HN asked the Applicant to help with the home school of her children. Her son had a problem with mathematics. The Applicant was recommended by a friend. Her children loved the Applicant’s teaching methods. The Applicant used innovative means including photography to capture the children’s interest and teach them. HN was very impressed by the Applicant’s work with her children.
71. [71]
    HN works as a social worker and has an understanding of the child protection framework. She is of the view that the Applicant is not a risk to children. She stated that the Applicant is active in her social circle and involved in the community. She has had the opportunity to observe the Applicant drinking socially and has observed no problems as a consequence of her consumption of alcohol in a social context. The Applicant is a happy person who brings excellent problem-solving skills. The Applicant has excellent skills for teaching children. The Applicant is a social person well thought of in the community.
72. [72]
    HN told the Tribunal that the Applicant had discussed her offences with her. She does not see the Applicant is an angry person. She does not see the Applicant having any particular weaknesses. The Applicant is a valuable member of the community who has skills that can help people. She supports the Applicant getting a positive notice notwithstanding her criminal history.

Relevant law to be applied by the Tribunal

73. [73]
    The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
74. [74]
    The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being.
75. [75]
    The decision under review is whether the Applicant’s case is an ‘exceptional case’ in as much as the presumption prescribed by section 225 of the Act has been displaced. The nature of the Applicant’s Police information is such that the statutory presumption is that a notice should be issued to the Applicant.
76. [76]
    In order to issue a negative notice to the Applicant the Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an ‘exceptional case’ exists.
77. [77]
    Any hardship or prejudice suffered by the Applicant due to such a determination is irrelevant to this consideration.
78. [78]
    The Tribunal has decided in other cases that the passage of time alone is not determinative as to whether or not an ‘exceptional case’ exists.

What is an ‘exceptional case’?

79. [79]
    The Act does not define the meaning of an ‘exceptional case’. Section 226 of the Act refers to certain factors that the Respondent must have regard to in determining whether this is an ‘exceptional case’, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Respondent reasonably considers relevant to the assessment of the person.
80. [80]
    The Tribunal must, in exercising its review function under the QCAT Act in determining whether an ‘exceptional case’ exists, ensure that the harm and welfare and best interests of children is its ‘paramount consideration’.^[1]
81. [81]
    It has been previously determined by the Appeal Tribunal that the meaning of an ‘exceptional case’ is a matter of discretion and should not be confined to ‘any general rule’.^[2] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher^[3] stated:

The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.^[4]

82. [82]
    The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, there are exceptional circumstances, which dictate that it would not be in the best interests for children for a blue card to be re-issued.
83. [83]
    The purpose of employment screening is to assess the risk to children involved from anything disclosed by such check. The focus on convictions is not a mere theoretical or possible risk arising from the fact of the previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm.
84. [84]
    The Tribunal must be satisfied that this is an exceptional case of harm to children. The onus is on the Briginshaw standard (on the balance of probabilities) to show that the there is such exceptional case of relating to harm to children.

Director-General, Department of Justice and Attorney-General Submissions

85. [85]
    Ms Marunda Haatzari referred the Tribunal to the Statement of Reasons provided with the decision and her written submissions.
86. [86]
    Ms Marunda Haatzari noted that the object of the Act was to promote and protect the best interests of children.
87. [87]
    Ms Marunda Haatzari submitted that the Western Australian decision of Scott No 2 [2008] WACA 171 provided that the negative impact on an Applicant that was not a factor to be taken into account.
88. [88]
    The Tribunal must make the correct and preferable decision. There are no serious charges so a blue card should be issued unless an ‘exceptional case’ occurs wherein such a decision would not promote the welfare and best interests of children.
89. [89]
    Ms Marunda Haatzari noted that because none of the charges were serious offences that presumption was that a positive notice should be issued.
90. [90]
    The Respondent sees the following protective factors:

    1. The evidence of the HN was that the Applicant was a very good initiator with children. She helped her children with mathematical problems using photography and other activities;
    2. The evidence of YM was that the Applicant was exceptional dealing with young people and children in Northern Town. She had no issues with the Applicant during her probation. She saw the Applicant as respectful and honest;
    3. The Applicant seems well respected in her community;
    4. The evidence of YM was that it was not easy to gain the trust in respect of the community and this was a protective factor;
    5. The evidence of Dr BJ was that the Applicant developed some strategies dealing with her PTSD and she had also decided not to drink in public places so as to not put herself at risk. The Applicant was aware that alcohol could trigger her PTSD symptoms. She has talked to the Applicant about protective strategies;
    6. The Applicant has adopted mediation and yoga as ways of addressing stressors;
    7. The Applicant has provided references from people who speak positively of the good character interactions with children; and
    8. The Applicant appears to have sought professional assistance through a psychologist and taken steps in relation to dealing with Post Traumatic Stress Disorder.
91. [91]
    The Respondent relies on the risk factors contained in the statement of reasons document.
92. [92]
    The Respondent sees the following is the main risk factors:

    1. the Respondent is concerned that the Applicant is minimising her behaviour;
    2. the Applicant sees herself as the victim taking no responsibility for the offending;
    3. the Applicant does not see alcohol consumption as an issue whereas her history raises alcohol as an issue;
    4. YM spoke to the Applicant that the benefits of rehabilitation but the Applicant has not taken up this offer.
    5. Dr BJ’s evidence was that she had spoken to the Applicant about the triggers for PTSD. The Applicant has not demonstrated insight that there is a risk of further offending. There is a lack of insight into the need to mediate the risk factors;
    6. the risk around consumption of alcohol, her lack of insight and minimising her behaviour are the main risk factors. She has presented herself as a victim;
    7. there are incidents in 2003 and in April, August and October 2015. All these incidents involved aggressive behaviour under the influence of alcohol;
    8. the events of October 2015 a very concerning. The imposition probation for nine months emphasises the seriousness of the offending; and
    9. the Applicant’s history consists of a number of convictions over a period of approximately 13 years. These offences relate to public disorder, serious assaults, assault or obstruct police officer and intoxication in a public place suggesting that the Applicant has difficulty  managing anger, maintaining self-control, and responding to conflict.
93. [93]
    The Respondent submits on the basis of these factors that an exceptional case has been established and that the decision of the Respondent should be confirmed.
94. [94]
    The Respondent would support a non-publication order based on the evidence about the mental health of the Applicant.

Applicant’s submissions

95. [95]
    The Applicant is committed to children and young people to contribute to the creation of safe and supportive environments for children and young people when receiving services and participating in activities which are essential to their development and well-being, such as childcare, education, support and cultural activities.
96. [96]
    The Applicant values human rights and social justice principles. She states that she strives to be honest, reliable, respectful and protective of the rights of vulnerable people and groups. She aims to encourage, educate to the best of her ability with enthusiasm and always have nothing other than good intention in respect for her students. Education has always been her passion. She likes to see young people learn in a safe and creative way.
97. [97]
    The Applicant submits that there are the following positive protective factors:

    1. positive supportive loving childhood with multicultural schooling experience;
    2. she has obtained a Bachelor of Arts Degree in Anthropology and Archaeology and is completing her Diploma in Photography. She has used these skills with the local indigenous community and intends to run photography workshops community members including young people;
    3. she has a large circle of friends in the area;
    4. close working arrangement with the local dance troupe. She has submitted material behalf of the indigenous community to the Queensland National Archive Museum; and
    5. she has a long history of working with children in many different fields throughout her career and there has been no evidence of inappropriate conduct on any occasion. There has only been consistent professional work ethics and overall good character. Numerous statements to support this had been submitted to Blue Card services.
98. [98]
    The Applicant strives to uphold the following values:

    1. acknowledging the children and young people are vulnerable and deserve to be protected;
    2. assessing situations risk factors working with children and young people;
    3. upholding the rights of children and young people to have safe environments as detailed in the United Nation’s Convention on the rights of the Child;
    4. monitoring her own self-care to ensure her professional conduct remains intact times while working;
    5. being particularly sensitive to marginalised or isolated children and young people, children in care, indigenous children, children with disabilities and understanding that these factors may increase vulnerability; and
    6. being a transparent worker who welcomes supervision, personal development and critical reflection.
99. [99]
    The Applicant has a professional work history has given her a wealth of experience working with children and other groups. She has provided statements from friends with children previous employers vouching for her good character, community engagement and positive skills and rapport with children and both social professional environments.
100. [100]
     The Applicant submits that since the last incident in 2015 there have been no further incidents. She attended psychology sessions regularly every two weeks for a period of six months and then monthly for a further eight months in order to gain insight possible reactive behaviour situations that may trigger PTSD symptoms, situations in which she felt threatened. She was diagnosed with PTSD in 1998 following a traumatic incident when she was harassed and stalked by a person in Northern Town that left her with the dealing of being unsafe. She sought counselling following a drink-driving incident.
101. [101]
     The Applicant in relation to the circumstances in October 2015 found herself in a situation where her safety was in jeopardy following an attempted sexual assault and a physical assault in which she was aggressively pushed down eight concrete steps. She believes that a substance had been put into her drink without her knowledge. After she returned to Northern Town sought counselling to address her reactions when in a life-threatening situation. She took the necessary steps to gain an understanding of how trauma can be triggered especially when under the influence of alcohol and has taken all necessary steps towards understanding and healing. She no longer drinks alcohol in unfamiliar places or in public places where she might feel vulnerable.
102. [102]
     YM‘s evidence was that she observed nothing but friendly, polite and respectful interaction with all community members who use the Centre. She was aware that the Applicant was highly regarded by the indigenous community. She sees the Applicant as no risk to child related fields and would be more than happy for her to continue to be engaged with the Centre. She was of the view that a great loss to the community if the Applicant’s blue card was not reinstated.
103. [103]
     HN’s evidence was that the Applicant home schooled her son for a period of two years and engaged her three daughters’ photography very positive outcomes. She had successfully helped her son overcome obstacles he was facing with mathematics by structuring fun, engaging creative classes. She witnessed the Applicant’s ability to deal with conflict in a mature and constructive manner on a number of occasions. She has seen the Applicant at many functions and events and gatherings interact positively with children and young people. She supports the Applicant having her blue card reinstated.
104. [104]
     Dr BJ’s provided evidence that she had focused coping strategies to help deal with the associated PTSD symptoms. She gave evidence that the Applicant was a gentle, kind, compassionate and well-educated woman who is an active member of the community. She does not see the Applicant is a risk to children.

Discussion of the evidence.

105. [105]
     The Tribunal cannot look behind the convictions relating to the conviction from October 2015 but it is clear from the video that WTK have contested the charges.  What the Tribunal can do with the video is use it in relation to the circumstances around the offence in support of the Applicant’s contention that her behaviour was clearly at the lower end of violent behaviour.
106. [106]
     It would appear that the learned Magistrate who imposed the penalty was not given the opportunity to watch the CD coverage of the watch house. Video coverage does not support the contentions of the Respondent in the written submissions. The footage is very innocuous. However, be this as it is the Tribunal cannot go behind the conviction.
107. [107]
     The Tribunal notes in terms of the Applicant’s witnesses that all three witnesses were aware of the Applicant’s offences and still strongly supported her application for a positive notice.
108. [108]
     The Tribunal also notes that the Applicant served her probation without any problems.
109. [109]
     The Tribunal does not accept the contention of the Respondent that the Applicant is minimising her behaviour. The Tribunal accepts the evidence of her psychologist Dr BJ’s that the Applicant has insight into her behaviour. The Applicant has provided her explanation of the circumstances surrounding her convictions. The Applicant served her probation without fault and sought out counselling and strategies from her psychologist to address the risk factors. The Applicant has shown that she wants to be responsible for her own actions.
110. [110]
     The Tribunal does not accept the contention that the Applicant does not take responsibility for her offending behaviour for the reasons set out above. The Applicant has recognised the connection between her offending and the consumption of alcohol. She has developed strategies to address this as an issue. There is evidence or the Tribunal that the Applicant is able to have a drink or two with friends or in a family social situation without any problems.
111. [111]
     The Tribunal in relation to the contention that the Applicant did not take up rehabilitation points out that the Applicant engaged her psychologist and spent a lot of time with her psychologist addressing issues and developing strategies prevent a re-occurrence.
112. [112]
     The Tribunal does not accept the contention that the Applicant does not have insight into the risks around her Post Traumatic Stress Disorder. The evidence of her psychologist Dr B’s is that she has worked on coping strategies and is aware that she will need to manage the condition long-term.
113. [113]
     The Tribunal accepts the Respondent’s contention that aggressive behaviour was not the right way to resolve disputes nor the right way to act towards police or others. The Tribunal notes that the applicant has served her probation: developed strategies prevent a relapse prevention plan; and for much of her life has had no problems similar behaviour. The evidence looking at the whole of the Applicant’s life is that it has been leading in a constructive and positive manner. There is a wealth of evidence of the Applicant’s meaningful engagement with children and other groups over many years without any problems whatsoever.
114. [114]
     The impact of the penalty has served as a strong reminder to the Applicant that she cannot act in this way in the community. The Applicant has responded by changing her pattern of alcohol consumption; developing strategies to maintain her own well-being; in developing strategies to deal with her PTSD symptoms.
115. [115]
     The Tribunal is of the view that without changes to her lifestyle alcohol would be a risk. However, there is evidence that she has made changes and the risks in relation to alcohol consumption have been significantly reduced. There is no evidence that alcohol has impaired Applicant’s work performance. The evidence is that she can have a social drink with friends without problems. She has decided not to drink in public, as this will reduce the risks of a re-occurrence.
116. [116]
     The evidence before the Tribunal is of a person who has for the most of her life engaged in a highly constructive positive lifestyle. The Applicant embraces Buddhist lifestyle, which directs adherence to live a healthy lifestyle in harmony with others. There is a wealth of evidence that the Applicant has engaged in a positive way with children and young people in a variety of roles in a highly positive manner.
117. [117]
     The Tribunal accepts the evidence from a variety of sources that the applicant is a kind and compassionate person.
118. [118]
     The Applicant called several witnesses who had first-hand experience with her professional and courtesy to young people. These witnesses were prepared to attend and give evidence on the Applicant’s behalf. They were aware of the applicant’s criminal history and gave evidence that they were prepared to support the Applicant having a blue card.   The Tribunal accepts places weight the evidence of YM, HN, and Dr BJ.
119. [119]
     The Tribunal viewed the Applicant as an honest and credible witness and accepted the evidence, which she gave. The Tribunal placed weight on that evidence.
120. [120]
     There is ample evidence of the positive way the Applicant interacts with children and young people. The Tribunal sets this as an important protective factor.
121. [121]
     The Tribunal is satisfied in undertaking this weighting exercise that it has been established on the balance of probabilities that the case against the Applicant is not an ‘exceptional case’, which would harm the welfare of children and young people.
122. [122]
     The Tribunal takes the view that the Applicant’s convictions must be taken into the context of:

     1. her criminal history as a whole;
     2. the balance between risk and protective factors; and
     3. the strategies, which the applicant has put in place to address her offending behaviour.
123. [123]
     The Tribunal in the circumstances above does not accept Respondent’s position as set out in the Respondent’s Statement of Reasons document or written submissions that the evidence establishes an exceptional case.
124. [124]
     The Tribunal is of the view that the cluster of protective factors outweighs the risk factors.
125. [125]
     The Respondent was probably right to refuse the Applicant at first instance based on the information that was before the Respondent.  The Tribunal has had the advantage of much more evidence than was before the Respondent and is of the view that the Applicant’s circumstances are such that the Tribunal is satisfied that this is not an ‘exceptional case’.
126. [126]
     The Tribunal notes the decision of his Honour Justice Carmody in RPG v Public Safety Business Agency [2016] QCAT 331 where he finds that the Tribunal can only in these circumstances set aside the decision of the Respondent and remit that back to the Respondent. The practice of the Respondent is to then take into account the reasons and decision of the Tribunal.

Orders

127. [127]
     The decision of the Director - General Department of Justice and Attorney- General dated 6 December 2016 to issue a negative notice to WTK is set aside as the Tribunal finds that there is no exceptional case.
128. [128]
     The practice in accordance with the decision referred to in paragraph 162 of his Honour Justice Carmody is that the matter is remitted back to the Respondent to take into account the reasons and decision of the Tribunal.

Non-publication order

129. [129]
     The Tribunal has the power under section 66 of the QCAT Act to prohibit the publication of information that might enable a person or people such as WTK to be identified in circumstances where it would not be in the interests of justice to identify their names.
130. [130]
     At the time of the offending behaviour, the Applicant had been diagnosed with a mental illness. The Respondent supported a non-publication order being made protecting the Applicant.  The Tribunal is also satisfied that there is no public interest served by disclosing the Applicant’s name in circumstances where disclosure of her name would identify her. The Tribunal therefore prohibits the publication of the names of the Applicant.