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WCE v Director-General, Department of Justice and Attorney-General[2018] QCAT 3

WCE v Director-General, Department of Justice and Attorney-General[2018] QCAT 3

CITATION:

WCE v Director-General, Department of Justice and Attorney-General [2018] QCAT 3

PARTIES:

WCE

(Applicant)

v

Director-General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML297-16

MATTER TYPE:

Childrens matters

HEARING DATE:

21 September 2017

HEARD AT:

Brisbane

DECISION OF:

Member Ford

DELIVERED ON:

10 January 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of the Director-General, Department of Justice and Attorney-General to cancel a positive notice and issue a negative notice is confirmed.

The tribunal prohibits the publication of the names of the adult, her referees and of the organisations in the decision relating to the application number CML297-16.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue cards – review of a decision to issue a negative notice – serious drug offence – where conviction recorded – whether exceptional case – whether it is in the best interests of children to issue a positive notice

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360

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

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

In the marriage of Sandrk (1991) 104 FLR 394

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

REPRESENTATIVES:

 

APPLICANT:

Robert Gordon, counsel

RESPONDENT:

Haatsari Marunda

REASONS FOR DECISION

  1. [1]
    WCE and her husband are looking forward to the birth of their first baby. She hopes to play an active role in the child’s development through coaching, managing or otherwise assisting in their junior sporting pursuits.
  2. [2]
    WCE has been a childcare worker at a childcare centre and had worked for most of her adult life in other roles with children. However, the positive notice and Blue Card she held since 2013 was removed from her, upon new information provided by the Queensland Police Service. The Director General, Department of Justice and Attorney-General, issued her with a negative notice on 22 November 2016. The loss of her Blue Card prevents her from working in child-related employment here in Queensland.
  3. [3]
    On 19 September 2016, WCE was fined $1,500 for Unlawful Supply Dangerous Drugs, for which she pleaded guilty. A conviction was recorded as well. WCE has appealed this decision and the proceedings are ongoing. Her husband also has a drug-related criminal history, involving the same Queensland Police taskforce that led to her charges and conviction.
  4. [4]
    While WCE’s criminal history did not include a serious offence, the Director-General was satisfied that this was an exceptional case in that the best interests of children would be harmed if a positive notice and Blue Card[1] were issued to WCE.
  5. [5]
    WCE wants to continue working and undertaking voluntary roles with children. She has sought review of the Director-General’s decision to issue her with a negative notice.

The review process

  1. [6]
    The tribunal must hear and decide the review by way of a fresh hearing on the merits of the application.[2] The purpose of the review hearing is to produce the correct and preferable decision.[3] The tribunal must consider the same legislation as the original decision maker. The paramount consideration in employment screening decisions is a child’s entitlement to be cared for in a manner that protects the child from harm and promotes the child’s wellbeing.[4] Any child-related employment decision must be reviewed under the principle that the welfare and best interests of the child are paramount.[5]
  2. [7]
    Section 226 of the WWC Act sets out a non-exclusive list of matters, which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. The presumption under section 221 of the WWC Act is displaced in this case with the Director-General’s decision.
  3. [8]
    “Exceptional case” is not defined in the WWC Act. It is settled law that it is a broad discretion, considering the merits in each case.[6] What amounts to an exceptional case must “take it out and beyond the ordinary circumstances reasonably expected to occur”.[7] Prejudice or hardship to any applicant is not relevant in determining whether a case is exceptional. The tribunal is mindful of the decision in the Commissioner for Children and Young People and Child Guardian v Maher & Anor[8] that the risk and protective factors should be considered when determining a review decision about blue cards.

Criminal history of WCE

  1. [9]
    In 2011, WCE was charged and fined $300 for unauthorised dealing with shop goods. A conviction was not recorded. WCE is extremely remorseful and embarrassed by a “stupid impulse decision”.[9]
  2. [10]
    WCE pleaded guilty to the charge of supplying dangerous drugs and fined $1,500 on 14 September 2016. A conviction was recorded. WCE states she obtained the methyl amphetamine for her own personal use, which involved a girls’ weekend. She and a select number of the group used the drug and she gave the leftover to her sister and brother-in-law. She did not receive any payment. The judge “did note that (my) charge was at the lower end in terms of offending of this nature, which is why (he) chose to impose a fine as a penalty”.[10] WCE appreciates now the seriousness of this drug offending and states her use of illicit drugs was only ever for recreational purposes (4-5 times in total), that she was never addicted and occurred over a short period.
  3. [11]
    On 14 December 2014, WCE was charged with assault or obstruct a police officer. The charge was dismissed, following negotiations between her legal representative and police prosecutions. She had been on a night out, consumed a large quantity of alcohol and had touched a police officer’s face as she walked passed. It was “a stupid mistake”[11] she regrets.

The Director-General’s decision that this is an exceptional case and WCE should not have a Blue Card – the risk factors

  1. [12]
    The Director-General relied on new QPS information that had led to the negative notice. Section 221 of the WWC Act provides that a positive notice must be issued, where WCE was convicted of an offence other than a serious offence, unless it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. The Director-General determined that WCE’s case is exceptional for the following reasons:
    1. a)
      WCE’s offence of concern occurred in 2014. The recent nature of her offending, ‘supplying Schedule 1 dangerous drugs’ is a significant risk factor in their assessment.
    2. b)
      The offence arose during a targeted police operation investigating a large-scale drug syndicate run by an associate of the applicant’s husband. This associate appears to have been involved in trafficking dangerous drugs, including methyl amphetamine.
    3. c)
      The drug is listed under Schedule 1 of the Drugs Misuse Regulation 1987 (Qld) and considered by Parliament to be in the most serious category of dangerous drugs.
  2. [13]
    The Director-General acknowledges that WCE’s involvement in the operation is limited to sourcing methyl amphetamine for her personal use and for her friends and family.
  3. [14]
    However, the following evidence was of concern:
    1. a)
      The applicant was involved in discussions between at least two other people on how they supplied methamphetamine.
    2. b)
      On one occasion, obtained methyl amphetamine to use the drug on a girls weekend away with her friends.
    3. c)
      The applicant attended the supplier’s shed on a number of occasions.
    4. d)
      The applicant had messages on her phone between her friends discussing the use of the drug.
    5. e)
      The applicant had semi-regular contact with the person being targeted for drug trafficking during the investigation.
  4. [15]
    The search of WCE’s home by police unearthed cannabis, methyl amphetamine and drug-related paraphernalia. The Director-General believes this reflects adversely on WCE, raising concerns about her ability to act protectively of children placed in her care and to provide a safe environment for them. The harm caused by drugs in the community is well documented and the costs to the community are high in terms of the health, welfare and family breakdown issues associated with drug use.
  5. [16]
    The imposition by the Court, of the $1,500 fine clearly reflects the gravity with which WCE’s offence was viewed. Despite WCE’s solicitor submission to the contrary, the Court recorded a conviction, deeming that this offence ought to be disclosed to third parties, including future employers.
  6. [17]
    This is a sole drug-related offence but the police evidence and WCE’s own submissions indicate this was not an isolated incident. She admitted to using drugs on a recreational basis and had semi-regular contact with the person being targeted for trafficking methyl amphetamine in the Moreton District. Her husband is also a drug user.

WCE’s position that this is not an exceptional case - the protective factors

  1. [18]
    A number of friends and colleagues gave evidence that WCE is an exceptional child carer and greatly esteemed in her work. She is considered kind, non-judgemental and professional.
  2. [19]
    One friend, BDA, acknowledged that they had used marijuana as teenagers for recreational use only, but was only aware of the one time of recent drug use, that led to her conviction. BDA opined that there were greater issues (criminal activity) for some people who hold a blue card currently and she could not understand why WCE is being treated adversely. BDA is aware that WCE has undertaken counselling.
  3. [20]
    RW, a long-term friend, was shocked to hear of WCE’s offence and conviction and his primary concern was that she would not repeat the drug related actions. He considered there was no danger of her reoffending. He spoke highly of WCE, seeing her as a bright intelligent woman who was caught up with the offence as young people may do. WCE had cared for his youngest child at the childcare centre. WCE was now a mature woman starting a family and committed to family values. Her poor judgement has led to a lot of remorse on her part. RW would not have given a reference for WCE is there had been any other evidence of drug taking.
  4. [21]
    BC was a room leader at the childcare centre where WCE worked. She opined that WCE was well liked and respected and she had an easy rapport with the children. WCE had never presented at work under the influence of drugs or alcohol. She stated that ‘good people made poor choices’ and believes that WCE has learned from her choices. The Centre can subject staff to random drug testing. WCE could sometimes take on too much, spreading herself too thin. However, BC considered WCE reliant, trustworthy, well presented and engaged with all people. WCE is a loss to the centre.
  5. [22]
    TW is the partner of WCE and he was targeted in the same police taskforce.  In being charged for supply and possession, he received 15 months’ probation and no conviction was recorded. All drug tests undertaken have been clear since that time. TW stated that he started taking drugs about 5-6 years ago when he turned 30 years old. He had met WCE eleven years ago and introduced her to his friend, the supplier of the drugs. He was not aware of any previous drug use by WCE.
  6. [23]
    TW stated that together they had taken drugs four or five times in the last 5-6 years. When asked if WCE may have taken drugs without him, TW stated that was “very possible” and gave, as an example, the weekend away with her girlfriends.
  7. [24]
    TW acknowledged that he had contacted the supplier over a number of times in 2014. He was going through a “phase” and would use drugs in the “down times” when he was back home from working away in the mines, being a “fly in fly out” worker. It was “possible” that he used drugs while WCE was at work.  Only on one occasion did WCE collect drugs from the supplier for his use.
  8. [25]
    After being convicted of possession of utensils in 2015, TW has stopped using illicit drugs. He and WCE have disassociated with the supplier, knowing that they “need to have no contact” with the past. From the day they were raided by the police, it was “a wakeup call and game changer” for he and WCE. They were not regular users nor addicted to illicit drugs.
  9. [26]
    TW stated they developed a relapse prevention plan through the counselling process. This plan sets out how to ensure they are not caught up with drug taking again. The plan was tendered to the tribunal. It lists activities and skills the couple can enjoy to get their minds off using drugs; who to talk to if thinking about using drugs; identifies how their life would change is they relapsed; and records tips to avoid relapse.
  10. [27]
    WCE’s evidence is that she experimented with drugs on approximately 4-5 occasions. She has been charged with one count of supply only. When she did experiment with drugs, it was some time ago and it was for recreational purposes. She has never been addicted to drugs. The commission of the offence did not involve children and her ability to work continuously with children for their benefit is not hindered by her conviction. WCE and TW have effectively disassociated from people who use drugs. They are undertaking to engage in a more active lifestyle, now that she is pregnant with their first child.
  11. [28]
    WCE was issued a fine of $1,500 for an offence that carries a maximum penalty of 20 years imprisonment. Clearly, WCE’s charge is “at the lower end of offending of such nature”.[12] The judge had “accepted (WCE’s) early plea of guilt, cooperation with police, remorse, insight into the consequences of her offending and her constructive steps towards rehabilitation as mitigating factors”.[13]
  12. [29]
    At the hearing, WCE expressed remorse for her actions and stated her family had been disappointed in her. Her drug taking had been “a lapse in judgement”; she “did not consider the consequences” and “did not think about it honestly”. She acknowledged that drug taking was accepted in her friend group and believed that the association with the supplier was a big part of the reason for experimenting. She acknowledged that the friendship with the supplier included social gatherings, such as dinners and beach trips. WCE was friends with the supplier’s wife, who “was totally against” the supplier’s activities. WCE acknowledged that she would go with her husband on occasions when he visited the supplier. She was aware of his activities but not aware of “the degree of it”.
  13. [30]
    WCE’s life had taken a positive turn with the impending birth of her first child. This event has added to her focus on living a healthier lifestyle and remaining drug free. She states she has a better understanding of the impacts of illicit drug taking, as previously she “did not take into full consideration the full ins and outs of it”. WCE had not tried to stop this illegal activity before the raid by the police on their home. At the time her “involvement was not massive” and she “did not think of (her) actions at the time”, it being “a silly phase”. The raid was “a massive wake-up call” and she now sees “where (we) went wrong”.
  14. [31]
    WCE attended counselling following the recommendation at the QCAT compulsory conference. Earlier counselling at the time of the charge was “to see if (we) needed it”. WCE and her husband explored with the counsellor, what they had been through and how to move forward. They are both already on track, the relapse prevention plan strategies were already in place, and they had moved forward. She does not believe that she requires professional treatment anymore.
  15. [32]
    WCE stated that her previous employment with the childcare centre was an option if she got her Blue Card back. A women’s Christian centre had also offered her a position but they were unaware currently of her conviction.
  16. [33]
    GA is the psychologist who provided two reports to the tribunal. He considered there was no further problem with WCE and drug taking. WCE had taken full ownership of the charge and conviction, was focussed on her work and career and prioritising the arrival of her child. He did not believe she was dependent on drugs and that it was more a recreational or experimental pursuit. WCE was in a positive place to manage any relapse using a relapse prevention plan developed with him. WCE had good support, access to his services, is prioritising her health, has stress management strategies in place and had learnt from the earlier poor choices.

The Tribunal’s decision – is this an exceptional case?

  1. [34]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children in Queensland through a scheme “…to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so”.[14] In producing the correct and preferable decision,[15] I will consider the risk and protective factors in this matter. I turn my mind, as well, to whether WCE’s case is exceptional.
  2. [35]
    The Director General remains unconvinced that WCE should hold a positive notice even after hearing the oral evidence.  Protective factors were acknowledged, such as both she and her husband being remorseful and embarrassed, but moving forward with their lives. The couple dissociated from “the wrong crowd” and live a healthier lifestyle. They have support from family and friends and the psychologist is available to them for ongoing counselling. WCE’s witnesses spoke to positive interactions between her and children. Their psychologist is satisfied that they are unlikely to reoffend.
  3. [36]
    WCE presents as a woman who has learned from her experiences, but has done so through the course of legal proceedings, with a conviction and then losing her capacity to work with children. The conviction for supplying a schedule one dangerous drug, methyl amphetamine, is of serious concern.
  4. [37]
    While WCE’s lawyer submitted that she is remorseful and has insight into her offence, WCE continued to minimise her actions and her decisions. To her, the offences were silly mistakes, a passing phase, or only in recreational settings. I find it perplexing that WCE struggled at the hearing to find a reason for her behaviours at the time of the offence. She did not consider the consequences of illegal drug taking, even though her 12 years as a child carer must have imparted on her some knowledge of its illegality and its effects. There is no evidence that she was using drugs to manage a stressful time. The drug use was part of a social scene in which she and her husband participated.
  5. [38]
    I did not find either WCE or her husband entirely truthful. Presenting as casual drug users of 4-5 times does not ring true with the evidence. A friend confirmed that WCE experimented with marijuana when they were teenagers. WCE went with her husband to collect drugs from the supplier on at least one occasion. She picked up drugs from the supplier on one occasion for her husband. He could not be sure if she indulged in drug taking without him on more than one occasion (being the weekend hens’ party). He used drugs when off work and at home with his fly in fly out position. The couple had a close friendship with the supplier and his wife. They were more than occasional acquaintances, attending dinners and socialising together. WCE stated that the supplier’s wife did not condone his activity but everyone benignantly accepted his risk taking behaviour.
  6. [39]
    The supplier worked from a shed. This is a big operation and yet WCE stated she and her husband did not realise how big the supply operation to be. I am again perplexed at how one could not know the gravity of the offence nor the scale of the operation when the friendship was so close. The tribunal is not here to go behind the court decision. The court recorded a conviction. The fine may not have been significant in the eyes of the defence lawyer at trial, but a recorded conviction means it is on public record.
  7. [40]
    I must be satisfied that this is not an exceptional case. I am not satisfied. WCE is an experienced child carer with glowing references. She held a leadership role in her community of carers with the most vulnerable in society: children. Such a position of trust should be married with insight and due diligence involving illegal activity. However, WCE condoned the actions of her husband, her sister and her friends to use a dangerous drug, while indulging herself. Knowledge of this particular drug has become more public, over the last several years, regarding its adverse effects on users, and how it can destroy lives and lead to addiction. I acknowledge that WCE is not an addict but has a relapse prevention plan in place, developed with the psychologist. Again, I am not satisfied that the drug usage is simply to be explained away as casual and experimental.
  8. [41]
    I accept that WCE life changing events occurring currently, such as the impending birth of her first child. The court proceedings and outcome has  been a significant “wake up” call for the couple. I accept that the couple are no longer associating with the supplier and that they undertook counselling. I accept that the counsellor considers the couple are unlikely to use drugs again. His opinion, however, is against differing information being presented to him about the breadth of the drug taking.
  9. [42]
    A conviction is recorded for a dangerous drug. WCE is an experienced carer who directly cared for children while engaging in illegal drug taking and supply (even if no cash exchanged hands). She had the trust of parents that their children would be safe in the care environment. WCE gave evidence that she was never affected by the drug taking when at work.  I do not believe she would have wanted the parents to be aware of her drug taking. It is evident that her employers did not know. There is no evidence she was under stress or in adverse personal circumstances that would lead her to rely on drug taking to manage a mental health or medical condition. The social scene, involving a supplier of illegal drugs caught up in a serious drug police operation, was accepted by WCE and her husband and they willingly and voluntarily participated. I agree with the Director-General that this is an exceptional case for the reasons above.
  10. [43]
    The decision of the Director-General that the applicant’s case is exceptional is confirmed. I encourage WCE to apply for the cancellation of the negative notice within two years of the date of the original decision of 22 November 2016.

Non-publication order

  1. [44]
    On its own initiative, the tribunal is able to make a non-publication order under s 66 of the QCAT Act. The tribunal is satisfied that it is contrary to the public interest to release identifying information. WCE lives in a small community and had worked with children in a care environment.
  2. [45]
    The principles of openness and accountability can be achieved and maintained. The public interest can be served by permitting the public access to the details of blue card matters, the decisions made by the tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur, albeit de-identified.

Footnotes

[1] Working with Children (Risk Screening and Management) Act 2000 (QLD) (the WWC Act), s 221(2).

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

[3] Ibid, s 20(1).

[4] WWC Act, s 5.

[5] WWC Act, s 360.

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

[7] In the marriage of Sandrk (1991) 104 FLR 394, 399-40.

[8] [2004] QCA 492.

[9] Personal statement of Eliza Waite para 23, signed 13 July 2017.

[10] Ibid, para 28.

[11] Ibid, para 25.

[12] Submission Robert J Gordon, Counsel for the Applicant dated 21 September 2017 p 6.

[13] Ibid.

[14] WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, per Thomas J, [17].

[15] QCAT Act, s 20(1).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2018] QCAT 3

  • Court:

    QCAT

  • Judge(s):

    Member Ford

  • Date:

    10 Jan 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
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
2 citations
Jump To
Cite 1 - [2014] QCATA 27
Cite 2 - [2014] QCATA 27
In the Marriage of Sandrk (1991) 104 FLR 394
2 citations
Jump To
Cite 1 - (1991) 104 FLR 394
Cite 2 - (1991) 104 FLR 394
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
2 citations
Jump To
Cite 1 - [2015] QCATA 190
Cite 2 - [2015] QCATA 190

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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