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KJB v Director-General, Department of Justice and Attorney-General[2018] QCAT 187

KJB v Director-General, Department of Justice and Attorney-General[2018] QCAT 187

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

KJB v Director-General, Department of Justice and Attorney-General [2018] QCAT 187

PARTIES:

KJB

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML032-18

MATTER TYPE:

Children’s matters

DELIVERED ON:

27 June 2018

HEARING DATE:

22 June 2018

HEARD AT:

Brisbane

DECISION OF:

Professor Ashman, Member

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that KJB’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  2. Publication is prohibited of any information that may identify the Applicant and any relevant child in this matter.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue card – where Applicant sought the cancellation of a negative notice – where the decision of the Respondent was set aside and replaced with a decision that there is no exceptional case

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221

APPEARANCES & REPRESENTATION:

 

Applicant:

P Kinchina of Counsel instructed by E Bassingthwaigthe of Hall Payne Lawyers

Respondent:

C Borger, for the Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    In November 2006 and November 2008, KJB applied for, and was issued, a blue card that he required as a volunteer with a community-based organisation. He applied again in 2014 when he intended to study for nursing qualifications but on 16 January 2015, a negative notice was issued and, hence, he was not eligible for a blue card. He applied to have the negative notice cancelled on 16 January 2017, but this was eventually refused on 4 January 2018.
  2. [2]
    On 23 January 2018, KJB filed an application at the Tribunal for a review of the Department of Justice and Attorney-General’s decision. His application sought the cancellation of the negative notice issued to him under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) to allow him to progress his employment in the nursing profession as a blue card was a requirement for practicum placements as they might have involved working with children.
  3. [3]
    KJB has a history of contact with the adult justice system having convictions for a number of offences although none is a serious offence under the Act. KJB’s criminal history stems primarily from drug related charges that began in March 2006.
  4. [4]
    These charges include four for failure to dispose of needles and syringes (in 2006 and 2014), two for possession of dangerous drugs (in 2011 and 2014), and one for the contravention of a domestic violence order (in 2016). No convictions were recorded for any offence but KJB was fined sums ranging from $250 to $500, placed on recognisance of between $150 and $1,500, and/or required to be of good behaviour for defined periods.
  5. [5]
    In dealing with a review of the Director-General’s decision, a person who has been convicted of offences other than a serious offence as defined by the Act is entitled to a positive notice and blue card unless it is considered that the individual’s circumstances constitute an exceptional case such that it would harm the best interests of children for the person to have a positive notice[1].
  6. [6]
    In the course of its enquiries, the Director-General considered KJB’s case to be exceptional.
  7. [7]
    The purpose of the Tribunal’s review is to produce the correct and preferable decision.[2] In undertaking the review, the Tribunal may confirm or amend the decision, set it aside and substitute its own decision, or set it aside and return it to the Director-General, Department of Justice and Attorney-General for reconsideration.[3]
  8. [8]
    The term, exceptional case, is not defined in the Act. Whether a case is exceptional or not is to be determined by considering the circumstances of each individual case and having regard to the legislative intention of the Act.[4] Therefore, in the course of this review, the Tribunal needs to consider KJB’s circumstances to determine if an exceptional case exists. In addition, the Tribunal’s decision needs to be consistent with the Act’s objects that include promoting and protecting the rights, interests, and wellbeing of children in Queensland and in accordance with the principle that the welfare and best interests of a child are paramount.
  9. [9]
    Blue cards are given without condition so if KJB were to be successful in being issued with a blue card, he could work in any area of child-related employment, whether supervised or not.
  10. [10]
    In summary, in determining if the correct and preferable decision, the Tribunal needs to be satisfied on the balance of probabilities that an exceptional case exists, or it does not exist. Prejudice or hardship experienced by the applicant by not having a blue card issued are not relevant when considering the case and neither is any benefit that children might derive by having access to the applicant.
  11. [11]
    I will begin by outlining the Director-General’s written and oral submissions to the Tribunal, then KJB’s written and his oral submission, then the witness and referees’ evidence that was given orally and in writing. Following those considerations, I will outline the reasons for my decision.

The Director-General’s written submission

  1. [12]
    The Director-General provided a copy of the reasons for refusing to cancel KJB’s negative notice. As is typical, the reasons are wide-ranging. They include a history of KJB’s criminal history, documents reporting excerpts from interviews between KJB and departmental officers, excerpts from references that KJB would have provided, Queensland Police Service court briefs, and reports from medical and other health-related professionals. As KJB is an Enrolled Nurse, there are also documents from the Australian Health Practitioner Regulation Agency (AHPRA). Some of these documents were filed at the Tribunal subsequent to Direction Hearings between 15 February and 7 June 2018.
  2. [13]
    I do not consider it necessary to catalogue KJB’s personal history back to his childhood, the details of his criminal record, or the extracts from interviews and correspondence between the departmental officers and KJB other than to raise issues as they are relevant to my decision. I believe it is pertinent to the Director-General’s position to provide a brief summary of three health professional reports contained in its bundle of documents as they cast light on evidence provided to the Director-General concerning KJB’s involvement with rehabilitation services.
  3. [14]
    The first was provided by psychologist, Ms Panebianco, who reports that she had five consultations with KJB following his initial contact with the Metro North Mental Health Alcohol and Drug Service in February 2016. The focus of the treatment was his abstinence of methamphetamines. KJB had five meetings with the Ms Panebianco. Her report contains the commonly included history and treatment descriptions and concludes her report thus:[5]

It is expected that maintenance of abstinence will continue whilst KJB remains focused on this long-term goal of being a nurse and he remains cognizant of the negative impact substance use has had on this lifestyle and he remains vigilant in managing the risks for relapse. Ongoing and regular engagement in psychological therapy will assist KJB to access relapse prevention strategies, in addition to the development and application of new cognitive and behavioural management strategies.

  1. [15]
    Dr David Orth of the Gladstone Road Medical Centre has been KJB’s general practitioner since September 2016. His report was dated 24 March 2017. Dr Orth wrote that KJB originally attended the surgery for control of his HIV condition. In terms of his drug use, Dr Orth reported KJB’s readiness to undertake steps to never use the drug again and took a referral to a psychologist. Dr Orth says that since his initial attendance he has responded well to therapeutic interventions and has reported no drug use or desire to use drugs, being committed to lifelong abstinence. Dr Orth writes that KJB reported that psychotherapy has been very useful and that his mood and quality of life has improved. Dr Orth concludes that KJB expressed the view that his chosen profession is important to him and he is determined to maintain abstinence and to submit to any conditions that AHPRA may require.
  2. [16]
    Finally, consultant psychiatrist, Mr Nigel Prior wrote on 19 July 2017 that he conducted a health assessment and generated a report for AHPRA in regard to KJB’s application for registration. Apart from the usual histories, Dr Prior gives a diagnosis of Substance Use Disorder and notes that KJB has undertaken urine and hair screenings for evidence of drug use. And in this context, he writes that a colleague, Dr Appleton, suggested that the sensitivity timeline in the hair samples could verify KJB non-use of any illicit drugs back as far as six or even ninth months prior to the sample collection in May 2017, that is, back to October or November 2016. Dr Prior writes that on the basis of the “recent cessation of substance use and commitment to ongoing abstinence I consider that he is safe to practice as an Enrolled Nurse.” He does, however, suggest a number of condition to KJB’s registration, which appear to have been applied by the Agency.
  3. [17]
    Having reviewed the evidence concerning KJB’s application for a review of the negative notice, on 4 January 2018, the Director, Screening Services Unit, Blue Card Services, in the Department of Justice and Attorney-General provided a 19-page review and concluded that the granting of KJB’s application to have the negative notice cancelled was not in the best interest of children and young people at that time.
  4. [18]
    It is also relevant to the Director-General’s position to outline a submission dated 20 June 2018 presented to the Tribunal during the hearing on 22 June 2018. It expresses continuing concerns and invites the Tribunal to consider the issues as part of its review process.
  5. [19]
    The submission identified four protective factors relevant to the matter. These included KJB’s:
    1. (a)
      expressed remorse for his offending and his expressed willingness and intent to avoid re-offending;
    2. (b)
      involvement with psychological services in his attempt to cease the use of illicit substance and improve his body image;
    3. (c)
      termination of friendship relationships that were linked to drug use; and
    4. (d)
      compliance with conditions imposed by the AHPRA.
  6. [20]
    Also raised was a significant number of risk factors. These can be summarised as follows:
    1. (a)
      KJB used illicit substances through to 2014 and his ongoing consultation with psychological services and his diagnosis of a Substance Use Disorder suggest that he is in an early phase of recovery and has not yet addressed the triggers of drug-related behaviour. This is evidenced by the AHPRA conditions imposed on his nursing registration.
    2. (b)
      APHRA conditions are evidence of KJB’s continued risk to the public.
    3. (c)
      KJB’s submissions overall show little remorse or insight into his behaviours and alleged behaviours.
    4. (d)
      KJB has minimised his offending behavior or misrepresented his offending behaviour as shown in various conflicting statements in KJB’s submissions and those of treating professionals.
    5. (e)
      The conflicting statements present across various submissions to the Tribunal should be considered cautiously especially in regard to Mr Kemp’s misrepresentation of this use of methylamphetamine.
    6. (f)
      As an Enrolled Nurse, KJB should be highly aware of the use of methylamphetamine and the dangers posed by improperly disposed syringes and needles.
    7. (g)
      The use of methylamphetamine is associated with a number of mental health symptoms.
    8. (h)
      to k) KJB’s lawyers view the broad employment condition imposed by APHRA are a protective mechanism but these are for a limited period, yet to be completed, not related to the issue of a blue card, are not directed toward incidents where he displayed aggression to others.
    1. (l)
      A blue card is transferable to situations beyond the originating reason for the application and, as such, KJB could work in unsupervised situations with children.
    1. (m)
      KJB does not appear to understand the purpose of the blue card system or the responsibilities of a blue card holder that are to be exercised as evidenced by comments made by him in interviews and conversations with departmental officers.
  7. [21]
    I turn now to the oral evidence given at the hearing by the Director-General’s legal representative.

The Director-General’s oral evidence

  1. [22]
    The Director-General acknowledges that KJB’s criminal history involved no serious offences as identified in the Act, but is mindful that one offence involved a child. It is significant to outline that incident.
  2. [23]
    In 2016, KJB broke up with a partner with whom he shared accommodation. That person packed all of KJB’s personal possessions into KJB’s vehicle and refused entry when KJB returned home. Due to a lack of other accommodation, KJB sought accommodation in a home occupied by family members, including his 5-year-old niece. One evening, the child went alone into the room KJB was occupying and returned to a family area carrying a syringe. As it was known that KJB had a history of injecting illicit substances and was HIV positive, understandably, there was considerable concern that the child might have punctured her skin while handling the syringe, and medical treatment was sought to ensure that she would be protected from HIV infection if a puncture had occurred.
  3. [24]
    The Director-General’s legal representative expressed serious concern about KJB’s behavior and irresponsibility concerning the carriage of an unprotected syringe into a home where others (and in particular, a child) might have access to it.
  4. [25]
    The legal representative also drew attention to KJB’s history of elevated emotional reactions when he has been under stress and that there was little evidence to suggest that he was now able to cope effectively and safely in emotionally demanding situations. She recognises the employment conditions imposed by APHRA as appropriate but argues that the imposition of these conditions is a clear indication that the profession is, as yet, unconvinced of KJB’s ability to remain abstinent from the use of illegal substances. The conditions might curtail KJB’s use of those substances in the short term but there is no guarantee that upon their removal he will not relapse into drug use.
  5. [26]
    During the course of the hearing, the legal representative also emphasised KJB’s contravention of a domestic violence order (DVO) that raises concerns about his ability to provide a safe environment for children. In brief, the DVO resulted from a disagreement between KJB and his new partner in the family home with each accusing the other of infidelity. A loud exchange and some minor physical contact occurred until KJB removed himself from the argument. His sister followed him to a bedroom (she was also emotionally elevated at the time), and attempted to force entry into the room. KJB’s resistance and the sister’s insistence on entering led to the door being damaged. KJB then left the premises. The police had apparently been called by neighbours and took statements from all those present. The police later report that they were unable to locate KJB in the local area. Subsequently, the police applied for a DVO, which limited contact between KJB and his partner.
  6. [27]
    Some period later there was another disagreement between KJB and his partner. The latter had gone to a friend’s house. KJB located him there and another argument ensued. The resident forcibly ejected KJB, the police were informed and KJB was charged with contravention of the DVO.
  7. [28]
    The events surrounding the DVO and its contravention are seen by the Director-General as evidence that KJB is unable to control his behavior especially when his emotions are elevated. This disinhibition could have serious consequences if children were involved or were witness to his aggressive outbursts.
  8. [29]
    The Director-General appreciates that KJB has been involved in drug rehabilitation programs, is now an Enrolled Nurse with part-time employment at a city hospital, is in a stable relationship with the same partner who was the aggrieved party in the DVO, has a supportive friendship network, and has abstained from illicit substance abuse for a period. Nevertheless, she remains unconvinced that KJB had sufficient time to demonstrate that he has developed insight into the impact of his criminal behaviours and irresponsible actions, understands fully how these can affect children, or has developed appropriate and effective strategies to ensure that there was no possibility of a relapse in either drug use or aggressive behavior.
  9. [30]
    I turn now to KJB’s submissions.

KJB’s written submission

  1. [31]
    KJB’s application for a review of the Director-General’s decision contains a copy of the Director-General’s decision and a 2-page attachment that outlines the chronology of the application, the contentions contained in the Director-General’s reasons, and brief comments challenging those contentions.
  2. [32]
    Subsequent to Directions hearing, KJB provided several submissions including a number of affidavits that contained: APHRA documents detailing the conditions imposed on KJB’s Enrolled Nurse registration; a psychology report addressing KJB’s offending behaviours, its impact on society, victims and any children associated with him, and risk and protective factors; a life story in which KJB reviewed and attempted to explain his criminal record; results from his university studies; and statements from family members and his partner.
  3. [33]
    In a statement accompanying his application, KJB acknowledges that he has a criminal history, predominantly for drug-related offences. He states that he used drugs intermittently starting in his late teenage years, when he began mixing with people who were active in the nightclub scene. It was through those involvements that he was first introduced to recreational drugs, including methylamphetamine. He admits to having had strong feelings of abandonment at the time as his father had left his chronically ill mother. He also harboured feelings of inadequacy in regard to his body image, and to the lack of success in establishing anything other than a small number of unpleasant and unsuccessful relationships. Despite this, he remained employed through his 20s and into his middle 30s, primarily in the public service. He states that since caring for his mother over many year and up to her recent death, he developed an interest, then a passion for the nursing profession.
  4. [34]
    The route to nursing was circuitous due to his inability to acquire a blue card as this limited his access to university programs and courses that involve professional activities for which a blue card is required. Nevertheless, he persisted and gained qualifications and registration as an Enrolled Nurse and works part-time in a city hospital.
  5. [35]
    It is relevant at this point to report briefly on the health professional reports that have addressed KJB’s circumstances in addition to those to which I have referred in [14] to [16]. Psychologist Brett Somers had five sessions with KJB beginning in mid-August 2014. At about that time KJB states that he had stopped using illegal substances and was actively pursuing his nursing qualifications. Mr Somers’ report of 5 November 2014 states that KJB has taken committed action to improve his wellbeing and personal circumstance that has led to increased stability in personal relationships, abstinence from illicit substances, and a strong commitment to his studies.
  6. [36]
    A far more comprehensive and particularly relevant report to the matter before the Tribunal was prepared by Forensic Psychologist, Therese Ellis-Smith dated 1 June 2018. Dr Ellis-Smith was specifically asked to address the issues pertaining to the issue of a blue card. Her report is wide-ranging in its history and chronology and details the outcome of personality assessments she administered. In brief, her report notes that her assessments do not indicate the presence of clinical psychopathology. KJB’s self-concept is generally stable and positive. He is normally a confident and optimistic person who approaches life with a clear sense of purpose and convictions making him resilient and adaptive. He appears cheerful, friendly and extroverted, social, and has had very few stressful events in the recent past. He reports having a significant friendship network in which he can gain support when needed.
  7. [37]
    In terms of treatment considerations, Dr Ellis-Smith states that KJB is not experiencing marked distress and is largely satisfied with himself. He possesses a number of strengths that are positive indications for a relatively smooth treatment process. In terms of the risk of re-offending, Dr Ellis-Smith recognises several risk factors including KJB’s violent offences, relationship instability in the past, employment problems, substance use, periods of anxiety, and the potential for further stress. However, she concludes, “On balance, KJB is assessed as a Low risk of further violence, with a score of 9/40.”[6]
  8. [38]
    In regard to KJB’s insight into his offending behaviour, Dr Ellis-Smith reports that he disclosed considerable remorse and regret about the incident that involved his niece. He recognises that his emotional problems have triggered a lack of care and attention to detail in disposing of syringes and that the incident was the catalyst for his ceasing the use of illicit drugs. He is fully aware of the risks linked to his HIV status.
  9. [39]
    Dr Ellis-Smith opines that KJB will need to ensure that he attends to problems promptly and calmly to reduce the risk of relapse in the use of illegal substance and he would need to draw on the strategies he has developed to prevent relapse, including removing himself from volatile situations and seeking assistance from trusted friends. She refers to the recent death of KJB’s mother, with whom he had an especially strong bond as son and long-term carer, and that this event would have been a significant test of his self-management. She states that “he appears to have navigated that emotional turmoil in a mature manner, which augers well for the future.”[7]
  10. [40]
    Protective factors and preventative strategies were also addressed in the report. Of significance is KJB’s (planned) marriage and the existence of a loving and caring relationship with his partner. KJB is in stable employment and he reports being well respected and considered competent. Dr Ellis-Smith reports that KJB recognises that he has a lot to lose were he to relapse into the use of illicit substances. Dr Ellis-Smith states that KJB is highly motivated to continue on his current positive trajectory and has developed sufficient insight to sustain his effort, with his partner’s support.
  11. [41]
    In regard to existing preventative strategies, Dr Ellis-Smith refers to the APHRA conditions imposed. These include ongoing drug tests that have not returned a positive result, regular workplace reporting, and counselling obligations.
  12. [42]
    Dr Ellis-Smith concludes her report, “I support KJB’s application for a Blue Card and do not consider him to represent a risk to children at this time. I would encourage him to continue to comply with the AHPRA conditions and engage in counselling with Dr Charrington, as required.”[8]

KJB’s oral submission

  1. [43]
    KJB remained in the witness seat and gave evidence under affirmation for more than three hours. He was candid and open in his description of the years during which he used drugs and of the offences that took him to court.
  2. [44]
    He was not asked specifically to pinpoint any reason for the onset of drug use although he referred to the separation from his father as a young teenager and the loss of a father figure despite the fact that there were occasions of domestic violence toward KJB’s mother. He accepted that he used drugs as a panacea particularly in regard to relationship failures and self-image.
  3. [45]
    KJB was questioned intensively about the circumstance surrounding his court convictions and especially the incident involving his niece. On numerous occasions he expressed his deep regret concerning the use of illicit drugs and shame that he had inadvertently and unwittingly placed his niece at risk of HIV infection[9]. He stated, again many times, that he was committed to a drug free future and believed that he has developed strategies to gain assistance and support through his friendship network, health professionals, and from his partner if there was ever a situation that was hinting at relapse.
  4. [46]
    KJB was forthright in addressing his emotions and emotional vulnerability. The recent death of his mother caused considerable sadness due to his very close relationship with her. He said that he survived that period through the support of his partner and friends and expected that he would gain the same support if he were to face other stressful events in the future. He was also asked what might happen if there was a breakdown in the relationship with his partner. He responded that it would be very upsetting but he would deal with it as best he could, using the support mechanism that he had established. He stated that he and his partner have strategies to deal with such times when tensions arise, and he could not foresee their relationship foundering.
  5. [47]
    Mr Kemp was asked about his friendship network and he named about a dozen close friends, mostly couples, with whom he and his partner mixed. These were all people who have, and would, support him and he identified two in particular who were close and trusted confidants.
  6. [48]
    In regard to his nursing career, KJB said that the process of obtaining his qualification for registration as an Enrolled Nurse had not been easy. He was excluded from the first program in which he enrolled because he could not obtain a blue card. He was fortunate that the Australian Catholic University provided the opportunity for study by compiling the program such that he was not required to be in situations where a blue card was necessary. He admitted that the experience of trying to regain a blue card had been frustrating but, when asked specifically, clearly explained the purpose of the process and the need for stringent controls and requirements to ensure children were not subject to any risks. He admitted that some of his interactions with departmental officers at that time were totally unacceptable, he was sorry that they had occurred, and genuinely regretted the way in which he dealt with those situations.
  7. [49]
    KJB was questioned by the Director-General’s Legal Representative about inconsistencies in a number of psychology and police reports and comments recorded by departmental officers. The majority of these related to statements made by the report writers but attributed to KJB primarily concerning the use, or periods of abstinence from, drugs and events surrounding the incident with his niece and the conflict with his sister and his partner. Where there was an obvious conflict between the evidence KJB, was adamant that statements or actions attributed to him were incorrect.

Reference documents submitted by KJB

  1. [50]
    KJB provided three documents from the Australian Catholic University attesting to his performance on recent assignment undertaken in the School of Nursing, Midwifery & Paramedicine during the first semester 2018. These show that he received two Distinctions and a High Distinction.
  2. [51]
    There is a statutory declaration from KJB’s partner dated 20 June 2018 with whom KJB was in conflict on the night when the police were called, and which resulted in the issue of a DVO. The police report indicated that KJB’s partner told police that KJB was under the influence of ICE. KJB’s partner declares that the police report is incorrect, that he made no such statement.
  3. [52]
    There is a signed statement from KJB’s sister dated 19 June 2018 who is the mother of the niece who found the syringe. The police report cited her comment that KJB was an ICE addict. She denies making that statement to the attending police officers. She concludes her statement with the comment that KJB “is a very kind and compassionate person” and she supports the issue of a blue card to him.
  4. [53]
    KJB has also submitted a letter addressed to the Tribunal from his mother, prepared prior to her death. She states that over the last four years she has watched KJB turn his life around, enter into a stable and loving relationship, completing his nursing qualification and gaining registration as an Enrolled Nurse. She states that it has been a privilege watching him take ownership of his mistakes, reflect on the errors of judgement and knows that he has learned from these experiences. She says that she knows that he is terrified by his actions and if he could change them, he would. She says that she does not believe that he will ever re-offend or take drugs and will never undo all the hard work he has done to get where it is today.

Witness’ oral evidence

  1. [54]
    There was one witness appearing, for KJB, his partner. He was asked first to describe the relationship between the couple. He stated that it was a loving and caring relationship that was stable and supportive. He was asked how KJB reacted when they found themselves in disagreement. He said that KJB goes into a quiet space, thereby terminating the interaction and after a period of about an hour, they reconnect and sort out the issue. He stated that the period of tension never lasts overnight. He described KJB as something of a perfectionist who likes neatness, but that’s okay.
  2. [55]
    When asked about the incident that led to the domestic violence order, he said that it was just a disagreement, with some yelling and pushing. The impression the witness gave was that this was not a dangerous, domestic violence event and was no longer relevant to their relationship.

Final statements from the Director-General and from KJB

  1. [56]
    Neither the Director-General nor KJB’s legal representatives wished to make any final statement.
  2. [57]
    It is essential to report that KJB was not present in the hearing when his partner was giving evidence or when the Tribunal asked for final statements. He sought, and was granted, leave to withdraw as he had to undertake a urine test so that he could report the results to APHRA that day as part of the conditions of his registration. If he did not comply he would have breached the conditions.

The Tribunal’s decision

  1. [58]
    The Director, Screening Services Unit as delegate of the Director-General Department of Justice and Attorney-General issued its negative notice to KJB on 16 January 2015 and its reasons for this decision as required in accordance with the Working with Children (Risk Management and Screening) Act 2000. KJB sought to have the negative notice cancelled but this was refused.
  2. [59]
    The Act is quite specific about its purpose, that being the protection of the rights, interests, and wellbeing of children in Queensland taking into account the paramount consideration that children are entitled to care in ways that protect them from harm and promote their wellbeing.
  3. [60]
    The Director-General concedes that none of KJB’s charges or convictions is for a serious offence as described in the Act. Thus, KJB is entitled to receive a blue card unless his case is an exceptional one such that it would not be in the best interest of a child for him to have a positive notice and blue card issued as indicated in s 221(c) of the Act.
  4. [61]
    There is a range of authorities that supports the view about what constitutes an exceptional case. It is not defined specifically in the Act but is a matter of discretion based upon the circumstances of the case. In the Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, the Queensland Court of Appeal endorsed the approach of identifying a balance between the relevant risk and protective factors arising from the circumstances of the particular case, a procedure that appears to have been adopted by the Director-General in this matter and by the Tribunal in numerous earlier decisions.
  5. [62]
    The documentation and the submissions made by the Director-General mounts a case which argues that the risk factors in this case outweigh the protective factors, that:
    1. (a)
      KJB’s criminal history spans ten years and his failure to learn from its punishments by re-offending constitutes a disregard for the law and risk of future offences;
    2. (b)
      there is no substantive evidence that Mr Kemp will not relapse and recommence the use of illicit substances in the event that the conditions applied by APHRA on his registration as an Enrolled Nurse are removed;
    3. (c)
      KJB has not provided convincing evidence that he possesses sufficient protective strategies such that he would react in non-aggressive, culturally appropriate ways in highly emotional or stressful circumstances;
    4. (d)
      there is no compelling evidence that KJB has insight into, or remorse concerning, the effects that his past behavior might have had on children;
    5. (e)
      there are significant anomalies in evidence and documents presented by KJB that demonstrate that he is either minimising or misrepresenting his offending behavior; and
    6. (f)
      KJB’s submissions and the evidence given suggests that he is more driven to obtain a blue card by his career goals than his appreciation of the purpose of the legislation, that is, to ensure the welfare and best interest of children and their entitlement to care that protects them from harm and promotes their wellbeing.
  6. [63]
    The Director-General’s position presented in the six points immediately above is distilled from the thirteen in [20]. The logical conclusion is that these risk factors—taken as a whole—sustain an argument that KJB’s case is exceptional and do not justify the cancellation of the negative notice.
  7. [64]
    It is certainly the case that the 10-year period from 2006 to at least 2014 represented a life pattern that showed KJB’s disregard for community standard, the law, and the potential negative effect of his behaviour on others, including children. The use of illegal substances and re-offending behaviour give the impression that the punishments issued by the courts did little, if anything, to cause him to moderate his reliance on illicit substances. Moreover, the repetition of the same offences is evidence that he paid little attention to the need to protect others from potential dangers when it came to the storage and disposal of drug use equipment. Of considerable importance in the present matter is the event that occurred in May 2014 when his niece located a syringe in KJB’s bag leading to grave concerns that she might have been exposed to the HIV. This single event is directly relevant to the Director-General’s determination that KJB’s case is exceptional and contradictory to the intent of the Act.
  8. [65]
    The Director-General has also drawn attention to the issue of the DVO. At the hardest edge, the incident that precipitated the police attendance could be considered extremely serious with the potential for injury to one or more people, or worse. Toward the other end of the continuum, it might be argued that it was a minor incident characteristic of those that could occur from time to time in loving and caring relationships. It must be recalled that KJB’s partner was identified by the police as the aggrieved party. But make no mistake, any incident where there are threats of violence, or actual violence, can never be tolerated. And in this case, KJB’s aggressive behaviour toward that same partner led to another incident and, thus, contravention of the DVO and a fine. The Director-General considers that this sequence of events is contrary to the intent of the Act.
  9. [66]
    Understandably, there is much written and said about criminal histories and aggressive behaviour in this matter. The implication given in this exposé is that someone who has offended will continue doing so and will not learn from those experiences. There are many examples of individuals whose behaviour provides ample evidence of that view. There are also others who, by virtue of significant life experiences, change their behavior and become model citizens. Is KJB one of these?
  10. [67]
    The year 2014 appears to have been one of significant changes in KJB’s life. From the evidence given it seems that there were two catalytic events. The first was the incident that involved his niece in May 2014. In this case, it is irrelevant whether or not this occurred inadvertently[10]. When giving oral evidence before the Tribunal KJB expressed profound regret and shame about the dangers to which he had subjected his niece and proclaimed that this was unforgiveable.
  11. [68]
    The second event that appears to have changed KJB’s life was his wish to study for nursing qualifications. He began enrolment with Careers Australia in July 2014 having generated an interest in that profession as a result of his long-term primary caregiving role for his chronically ill mother. His enrolment with Careers Australia coincided generally with his referral to psychologist, Brett Somers, for treatment of his depressed mood and drug use. KJB appears to have immersed himself fully in his studies, graduated with a Diploma in Nursing, and is registered as an Enrolled Nurse.
  12. [69]
    These two events, and their consequences, appear to have had significant positive effects on the trajectory of KJB’s life. And while the Director-General has emphasised the risk factors that would have a bearing on whether KJB’s case is exceptional, what has occurred in his life since 2014 presents a picture quite different to the one argued by the Director-General. Reading many of the Director-General’s submissions paints a picture of an emotional immature, drug dependent, unsettled, and sometimes aggressive adult. A projection that is arguably not too distant from the reality prior to 2014. However, this is not the picture that corresponds to KJB’s current life or lifestyle as described in his affidavit of May 2018, one that corresponds to the various professional reports and documents that have been submitted as evidence in this matter, and the oral evidence he gave at the hearing. In this regard, the Tribunal has given particular weight to Dr Ellis-Smith’s report.
  13. [70]
     As has been stated earlier, the Tribunal’s concern is whether KJB is an exceptional case in relation to the risk he poses to children. Through his legal representatives and in his own oral and written evidence, he acknowledges that he has exhibited behaviours that are rightfully risk factors relevant to the issue of a blue card. These include his 10-year history of drug abuse and his criminal record. He accepts the hazard he introduced into the home in May 2015 that led to his niece discovering a syringe in his bag. He also concedes that his displays of aggression toward his current partner in 2016 represent a thoroughly inappropriate response to an emotionally charged situation.
  14. [71]
    KJB argues that he has addressed each of these risk factors and they are now countered by a range of protective factors that outweigh the risks. He argues that he has abstained from drugs since 2014. This has been made possible by his own commitment to abstinence and supported by his involvement with rehabilitation services: with psychologist Brett Somers, through involvement with Metro North Alcohol and Drug Service since 2016, and into 2018 with a schedule of spaced appointments with Dr Charrington with the latter two focusing on relapse prevention. He notes that even in 2014, Mr Somers reported that he had ceased using drugs and was presenting for regular consultations.
  15. [72]
    KJB reports that he has had no involvement with the criminal justice system since the DVO issue in 2016. He states that he has learned protective strategies that make the likelihood of a similar aggressive response in stressful or emotionally charged situation unlikely. This was confirmed by his current partner who described the way in which KJB reacts in a level-headed way to disagreements and though the support of a strong and caring friendship and professional network. KJB states that he severed all connections with acquaintances with whom he socialised when he was using drugs when he made the commitment to abstain and notes that his partner has never used drugs.
  16. [73]
    Of significant importance is KJB’s willingness to reach out for assistance and support when he becomes aware of potentially stressful or unsettling situations. This was apparent when faced with his mother’s recent death. He admits that her passing caused him considerable sorrow but he has coped effectively with those emotions.
  17. [74]
    KJB’s professional life has also provided a range of protective factors. He draws attention to the conditions imposed upon his nursing registration that requires regular urine and hair analyses. Initially, 12 urine tests were to be reported to AHPRA each month along with quarterly hair samples for analysis. KJB applied to AHPRA for a reduction in the frequency of urine tests and this was granted on 18 February 2018 with the AHPRA Compliance Officer (Mark Fivaz) writing, “The Committee is satisfied that there is minimal risk in reducing the practitioner’s UDS testing frequency to Group 2 noting that his hair testing will remain at the quarterly frequency.” The urine testing is now required four times per month. While the Director-General argues that these conditions represent a risk factor, expressing concerns about the likelihood that KJB returning to drug use once the conditions are removed, KJB’s legal representatives have drawn attention to earlier QCAT decisions in which the AHPRA imposition of registration conditions are considered protective, rather than a risk factor.[11]
  18. [75]
    It is apparent that KJB is delighted to have been granted registration as an Enrolled Nurse and his appointment in that role in a city hospital. He states that the journey has had its difficulties, but he has worked diligently and has received rewarding grades in assignments and courses taken. His commitment to nursing is strong and he his career aspirations that include progression in that field via a Master’s degree and a long-term commitment the health profession.
  19. [76]
    The Director-General’s submission to the Tribunal focuses on the past as a predictor of future behaviour. This is not altogether unreasonable, but it does not leave much room for considering the positive personal growth of an individual. Any risk that KJB poses to children in the future is unsupported. There is one incident (the event involving his niece) that is directly child related. KJB has displayed his insight into, and expressed remorse concerning, the effects that his past behavior might have had on children and freely admits that his past behaviour and actions as described in the evidence were inappropriate. The Tribunal sees no warning signs in the evidence that KJB poses a risk greater to children than any other adult in the community, and indeed, given the consequences of the events that occurred in his past life, the risk is arguably less than for many other adults. One cannot minimise the impact of the process that KJB has experienced in seeking a blue card, having his application rejected, and undergoing the process related to Director-General’s forensic enquiries and the QCAT process.
  20. [77]
    The Tribunal has considered the Director-General’s position in regard to anomalies in the documents presented by KJB that might be interpreted as minimising or misrepresenting his offending behavior. The Tribunal appreciates that a small number of details may constitute inconsistencies in recorded details but such irregularities do not invalidate the purpose of those documents or the recommendations of their authors.
  21. [78]
    Finally, it is necessary to comment on the Director-General’s submission that KJB’s wish to be issued with a blue card has been driven more by his career goals than his appreciation of the purpose of the legislation, that is, to ensure the welfare and best interest of children and their entitlement to care that protects them from harm and promotes their wellbeing. I do not consider these to be mutually exclusive propositions. On one hand, the Tribunal recognises that KJB’s progress through his studies was made difficult without a blue card, but he has achieved that goal up to the present time without one. On the other hand, KJB has expressed quite clearly the shame that has endured in his recognition of the impact of his behaviour, the impact that it might have had on children, and the clear intent of the Act.
  22. [79]
    There comes a time in a life-transformative experience when to turn back to a former lifestyle means the loss of what has been hard to achieve. One comes to a point where it is abundantly clear that there is simply too much to lose. The Tribunal is of the view that KJB has passed that point and the motivation to move into the future with realistic goals and new appreciations of one’s failures and successes cannot be dismissed or ignored. There is simply too much to lose to turn back.
  23. [80]
    Contrary to the Director-General’s view, the Tribunal is of the view that the protective factors that have been, and are currently, present in KJB’s life considerably outweigh the risk factors. He has engaged with rehabilitation services that have encouraged and supported considerable changes in his life. He has not used illegal drugs for four years. He expresses care and concern for children’s well-being and recognises that he has a responsibility to act in ways that support their development and affirm, promote and protect their rights, interests, and wellbeing.
  24. [81]
    The Tribunal does not consider KJB to be a risk to children at this time. The Tribunal does not consider this matter to be an exceptional case as proposed by the Director-General. On the contrary, what KJB has achieved over the past four years would suggest that he would continue to be a strong advocate for children’s rights and a consistent, positive role model as a person who has had the courage and tenacity to turn his life around.
  25. [82]
    The orders of the Tribunal are as follows: The decision of the Director-General’s, Department of Justice and Attorney General that KJB’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  26. [83]
    On 7 June 2018, the Tribunal issued a decision that relating to the prohibition of publication of any information that may identify KJB or any relevant child. I accept that this is a matter that warrants an order prohibiting publication of information that could identify KJB or any relevant child. There would be neither public interest served by the identification of these persons, nor is it in the interests of justice that any relevant child be identified. I order that the publication of information that may identify the Applicant and any relevant child is prohibited.

Footnotes

[1]Section 221 of the Act.

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

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.

[4]See, for example, Kent v Wilson [2000] VSC 98.

[5]See p. NTP-6 in the Director-General’s supplementary submissions.

[6]See p. 11 of Dr Ellis-Smith’s report.

[7]See p. 12 of Dr Ellis-Smith’s report.

[8]See p. 13 of Dr Ellis-Smith’s report.

[9]KJB states that he was not aware that his ex-partner (who injected drug) had placed the syringe in his bag and had not examined the contents of the bag taken into the family home.

[10] As mentioned above, KJB gave evidence that he was not aware that the ex-boyfriend had placed the syringe in his bag and the niece had searched his possessions when she visited the room in which he was staying.

[11]This is given in the Respondent’s bundle of documents at NTP-22.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2018] QCAT 187

  • Court:

    QCAT

  • Judge(s):

    Member Ashman

  • Date:

    27 Jun 2018

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
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
1 citation
Jump To
Cite 1 - [2004] QCA 492
Kent v Wilson (2000) VSC 98
1 citation
Jump To
Cite 1 - (2000) VSC 98

Cases Citing

Case NameFull CitationFrequency
DME v Department of Justice and Attorney-General [2019] QCAT 1742 citations
1

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