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HN v Director-General Department of Justice and Attorney-General[2018] QCAT 346

HN v Director-General Department of Justice and Attorney-General[2018] QCAT 346

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

HN v Director-General Department of Justice and Attorney-General [2018] QCAT 346

PARTIES:

HN

(applicant)

 

v

 

DIRECTOR-GENERAL DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML191-17

MATTER TYPE:

Children’s matters

DELIVERED ON:

22 May 2018

HEARING DATE:

10 April 2018

HEARD AT:

Brisbane

DECISION OF:

Member Murray

ORDERS:

  1. The decision of the Respondent that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue is confirmed.
  2. The Tribunal prohibits the publication of any information in these proceedings that could identify children in any way.

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 – blue card – where applicant issued with negative notice – whether exceptional case – whether or not in best interests of children to issue positive notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant has charges for serious offence of trafficking dangerous drug with outcome of nolle prosequi entered discharged – where applicant convicted of supply dangerous drug to another and breach of Probation Order – where applicant not convicted on charges of possession of dangerous drugs and Authority Required to possess Explosives

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant’s husband’s criminal history taken into consideration

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353,
s 358

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

Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171
Re FAA [2006] QCST 15

RPG v Public Safety Business Agency [2016] QCAT 331

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

C Borger, Solicitor and representative of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General (‘DJAG’) Blue Card Services (‘BCS’) to issue a negative notice under the Working With Children (Risk Management and Screening Act 2000 (Qld) (‘the WWC Act’) to HN on 6 July 2017.
  2. [2]
    The applicant, HN told the Tribunal she requires a blue card to conduct children’s activities at her church.
  3. [3]
    On 2 August 2017, HN filed an application in the Tribunal to review DJAG’s decision that her case was an ‘exceptional case’ in which it would not be in the best interests of children for HN to be issued with a positive notice and blue card.

Notices to produce

  1. [4]
    Through a Notice to Produce BCS filed documents in the Tribunal about:
    1. (a)
      child protection history recorded by Child Safety Services relating to HN’s care of her siblings while her parents were in jail; and
    2. (b)
      HN’s husband’s criminal history.
  2. [5]
    HN filed an application in the Tribunal that her husband’s criminal history should not be brought up at all at the hearing and not have any bearing on her application. She considered it was prejudicial detracted from the success of her application as she is her own person and ought not be condemned for other people’s past conduct.
  3. [6]
    BCS considered this material was pivotal in the review. HN said her husband is supportive of her and their reconciled marriage is a protective factor. She also stated she was mostly unaware of her husband’s criminal activity and it has no bearing on their child who was not exposed to her or her family’s offending behaviour.
  4. [7]
    BCS believed this attitude reflected poor insight and does not show an ability to ensure a safe and protective environment for children. A person working with children needs to be vigilant and attuned to their immediate surrounds including potential hazards and illicit items.
  5. [8]
    I considered these concerns needed to be explored with HN, particularly as her husband was a witness for her. I therefore did not grant the application to suppress the material.

The ‘blue card’ legislative framework

  1. [9]
    Employment screening for child-related employment is contained in chapter 8 of the WWC Act.[1] The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[2] It is protective legislation and has been described as ‘precautionary’ in its approach.
  2. [10]
    The Tribunal is to decide the review in accordance with the WWC Act and Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The Tribunal has all the functions of the decision maker for the decision under review. The purpose of the review is to produce the correct and preferable decision. In meeting that purpose the Tribunal must hear the review by way of a fresh hearing on the merits.
  3. [11]
    A child-related employment decision is to be reviewed in accordance with the principle that the welfare and best interests of children are paramount.[3] The overriding concern is the potential for future harm to children.

Issuing a positive notice unless it is an ‘exceptional case’ and HN’s criminal history

  1. [12]
    The WWC Act deals with ‘blue card’ applications in two broad categories:
    1. (a)
      Where a positive notice must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued;[4]
    2. (b)
      The chief executive must issue a negative notice to a person if the person is (or was) a disqualified person or has been convicted of a serious offence.[5]
  2. [13]
    HN’s cumulative criminal history forms the reasons BCS decided to issue her with a negative notice. Her full criminal history is discussed further on in these reasons but in particular, her history shows:
    1. (a)
      Four charges were made over 20 years ago of supplying heroin to another. She was convicted on each charge; and
    2. (b)
      HN was also charged with trafficking heroin at the same time. On each charge nolle prosequi was entered and discharged.
  3. [14]
    Trafficking is a serious offence. Where there are convictions for Trafficking, BCS must issue a negative notice.[6] HN was not convicted of a serious offence. Therefore a positive notice must be issued unless it is satisfied it is an exceptional case.

What is meant by ‘exceptional case’

  1. [15]
    What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[7]
  2. [16]
    The Oxford Dictionary defines exceptional as ‘of the nature of or forming an exception, out of the ordinary course, unusual, special’.
  3. [17]
    The application of the Act is intended to put gates around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]
  4. [18]
    The legislation is ‘protective’ although many applicants see it as further punishment for their past criminal behaviour. Prejudice or hardship to an applicant are not relevant in determining whether a case is exceptional. In Chief Executive Officer, Department for Child Protection v Scott [No2], Buss J observed (with reference to comparable legislation):[9]

The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account

  1. [19]
    Section 226(2) of the WWC Act sets out a non-exhaustive list of matters, which must be considered in deciding whether an exceptional case exists, such as time passed since committing the offences and changes in their lives and insight into their past.  The tribunal must consider these, but is not confined just to these matters. HN’s life story and her criminal history
  2. [20]
    HN was born in another country and came to Australia, with her parents and siblings, as refugees. During her early years in Brisbane her family moved often and she attended many schools.  During her teens she worked in her parents’ grocery stores and cafés.
  3. [21]
    In the early 90s when HN was a teenager, she and her parents were charged with serious drug offences. HN was charged with trafficking heroin, receiving and supplying dangerous drugs to the street value of over $500,000. She received a five-year suspended sentence. The Attorney-General successfully appealed the sentence and it was replaced with a seven-year sentence. HN was released on parole after serving 12 months in custody.
  4. [22]
    HN told the tribunal her father gambled and there were debts with their businesses. She said her parents were involved in trafficking drugs and her mother enlisted her in the transactions of the drugs because she could speak English. She said she was an obedient daughter and has always done what her parents asked of her. She said she had no choice in the matter.
  5. [23]
    Tape recordings of conversations between HN and the covert police officer indicated she played a crucial role in supplying the heroin. The trial judge said her explanation was implausible and she was lacking in remorse.
  6. [24]
    HN says she was a schoolgirl when her mother involved her in the supply of heroin. She said she was heavily influenced by her cultural relationship with her parents. Notwithstanding the sentence imposed, she spent only a few weeks in prison with the balance served at a halfway house.
  7. [25]
    While HN and her parents were in prison, her siblings were placed in foster care. When HN was released from prison some of the children lived with her (they were aged between 13 years and 20 years at this time).
  8. [26]
    There were no child safety concerns recorded by Child Safety during HN’s care of her siblings.[10]
  9. [27]
    HN commenced a double degree in Arts and Social Work. She didn’t enjoy Social Work and changed to law at the recommendation of SA, her barrister and later, her employer.
  10. [28]
    She graduated in law. She worked for a number of law firms in clerical and paralegal positions. She completed the legal practice course at the College of Law.
  11. [29]
    In 2007 HN married her current husband GE.
  12. [30]
    In 2009 HN was charged and convicted on one count of possessing dangerous drugs. She was charged with other offences of dealing with identification information and false declarations. No conviction was recorded with a good behaviour period of four months imposed.
  13. [31]
    The facts of these offences are that police officers executed a search warrant at HN’s home that she shared with her husband. She said police were looking for people or documents associated with her husband’s business. During the search, HN asked to use the toilet. She was searched, and police officers located a vial with 0.2 grams of crystallised methyl amphetamine she was trying to conceal in her underwear.
  14. [32]
    HN told the Tribunal that the drugs belonged to her husband, they were stored on a shelf in their bedroom but she didn’t know they were there. Her husband handed them to her. He was on parole at the time. She said it was an aberration; she just tried to hide them as she knew he could return to jail if the police found them. 
  15. [33]
    She said based on legal advice at the time she was charged, she pleaded guilty despite the drugs belonging to her husband.
  16. [34]
    Her husband was not charged with any offences in relation to this matter.
  17. [35]
    In 2012 HN and GE’s child was born. HN said she was the full time primary carer of their child until she returned to work in 2015.
  18. [36]
    HN told the Tribunal that in 2016 her sister and her sister’s partner were living with her. This was not a happy arrangement as they were both using drugs and creating problems for HN. GE had recently been sentenced for five years imprisonment. HN’s brother was living ‘on and off’ with her. Her brother was also in prison around this time. Police officers came to the house with a warrant that concerned HN’s sister and her partner. On searching the premises seven morphine tablets were found in HN’s bedroom drawer and ammunition (355 bullets) found in her safe. She was charged with possession of dangerous drugs and authority required to possess explosives and breach of probation order. HN was convicted on all charges and fined. She unequivocally contends they belonged to her brother.
  19. [37]
    HN told the Tribunal that the morphine tablets were in a blister pack, no box or label, and she didn’t know what they were. She said she thought it was medication to help him with his drug addiction and she was administering it to him when he asked for it. She said she did this as he had a tendency to overdose on any medication. She considered he had a serious drug addiction at the time.
  20. [38]
    HN said while her brother was in prison she cleaned out his share house and brought his belongings in boxes to her house and never looked in them. Some months later she looked in the boxes and found bullets. She put them in her safe ‘for safe keeping’. They were in her safe for about six months. She said she didn’t have a plan on what to do with the bullets. She said she forgot about them until the police found them. She said she saw no danger to her son in having the drugs and ammunition in the house as they were safely stored.
  21. [39]
    HN said it was because of her sister and her sister’s partner that she found herself in this situation. They attracted the police and caused the search. She said she had been trying to get them to move out of the house but they refused. Eventually they started sleeping in their car at the front of her house before moving to other accommodation.
  22. [40]
    HN said she and GE separated while he was in jail between 2016 and February 2018. She didn’t visit him in jail. She did not want her child to know he was in jail and told their child the father was working overseas. In fact she told most people, apart from her immediate family, that her husband was working overseas.
  23. [41]
    HN said she was disappointed in GE’s drug offending and other illegal activities. She said in 2009 she knew he was a recreational drug user but that he kept his drugs out of the house (although HN attempted to conceal these drugs kept in their bedroom when police searched the house in 2009). She said she had no power to stop him using drugs, he is his own person and if he uses drugs that is his business and it didn’t really affect her and their child.
  24. [42]
    HN stated her marriage to GE is currently strong. She said he is a changed man. While he was in prison he turned to God. She said she is a deeply religious person and this made her happy that he was reading the bible in prison. Since his release from prison he has joined her in bible studies each night. She said he is not using drugs or associating with people who use drugs. He is now attending church with her every Sunday and enjoying activities with their child. She said she trusts him implicitly, he is her husband and this is the nature of the relationship between husband and wife. She said she has faith in him and she is very happy with the way things are between them.

What HN says about BCS’s decision

  1. [43]
    HN considered too much weight was attributed by BCS to her convictions for supplying dangerous drugs when the offences were committed over 20 years ago. She said that was a long time ago, in hindsight her conduct was foolish and stupid and that she is not a drug user.[11]
  2. [44]
    She said that too much weight was placed on possessing dangerous drugs in 2009 when it was a small amount of amphetamines that belonged to her husband.
  3. [45]
    HN says too much weight was placed on the conviction in November 2016, particularly when the magistrate found she was ‘an admirable person who assisted her family with their ongoing ailments’ and the possession arose out of her goodwill and care of her family. The magistrate also stated that her family was putting her in an unenviable position where HN was offending.[12] BCS considered that these comments reflect that the magistrate considered that HN was unable to change her behaviour and develop practices to minimise the risk of recidivisms.
  4. [46]
    HN considered too little weight was ascribed to personal factors; she completed a law degree, has been employed in various jobs and is a mother of a young child with whom she has a close bond.
  5. [47]
    HN says she is a devoted mother, and she loves children in general. She ‘experienced the Holy Spirit at a charismatic retreat a few years ago and has been very grateful to God and wished to continue to be His humble servant wherever He leads her’.

Witnesses

  1. [48]
    HN filed references from OS, retired solicitor, RKY, member of her church, SA, Barrister-at-Law and former employer, NN, counsellor to HN for the past 20 years and GE, HN’s husband.
  2. [49]
    OS and RKY appeared in person. SA, NN and GE provided evidence by telephone.
  3. [50]
    OS has known HN for about five years through a prayer group. He believes he has read the Reasons issued by BCS. He has met HN’s husband and her mother. He understood that her husband went to jail at some point. He spoke about the cultural aspect of how HN was a dutiful daughter. He spoke about the history of the drug problems in HN’s country of origin. He spoke very well of HN and how she has had a hard life as a refugee, her time in prison as a young woman and the expectations of her family on her. He has found her to be caring, gentle and prayerful. He said she has ‘suffered for her past transgressions’. He said he would be very surprised if she got involved in drugs again. He said her soul was no longer in a dangerous state. He saw her faith and commitment to God, putting some boundaries on her family and being a mother as protective factors.
  4. [51]
    RKY believed that God had brought HN to her congregation.  She spoke well of her and said she was a very caring and loving person with good connections to the youth of their parish. HN was leading children’s activities with young people between the ages of 16 and 24 years. They are a multi-cultural congregation.
  5. [52]
    She said that she knew HN had been in jail many years ago and that her parents had forced her into the drug trade. She was aware there was another incident where her drug addicted sister, brother and his girlfriend where living with HN. She thought the police came and found drugs that belonged to the siblings. She believed her sister and brother were rehabilitated but his girlfriend was still involved with drugs. 
  6. [53]
    RKY has met HN’s husband on two occasions when he attended mass. HN told her that GE has been working overseas (he was actually in prison) for the past few years with a family business. HN told her they spoke all the time by Skype when he was overseas and that it was now time for him to come home as their son needed him. She said ‘GE was a very spiritual man and he is HN’s rock. He has been very supportive while he was overseas. He has told her family they can’t stay at their house. He has been her protector. He is a very gentle soul’.
  7. [54]
    SA said he has known HN for about 20 years. He has represented her in court. He also employed her as a receptionist. She was a babysitter for his infant child. He found her to be a good employee; on time, responsible and got the job done. He said he was aware of the Reasons issued by BCS. He thought she was harshly dealt with by the Courts. He said her family had a lot of involvement with her that led to her being charged. He considered that HN has taken steps to limit the influence of her family and not let them stay with her. He said she is not a drug user but some of her family members have been and he has acted for them in the past. SA said HN is very caring with her child and would never let a child be put in the way of moral or physical danger.
  8. [55]
    NN was a social worker counselling women in the Women’s Correctional Centre during the time HN and her mother were incarcerated. She has continued to support and counsel HN on a regular basis for over 20 years for no payment. She said she has read the Reasons issued by BCS. She said she has a very close relationship with HN who tells her everything about her life and that she knows she can trust NN with anything.
  9. [56]
    She has found HN to have had difficulties in separating herself from her family and their demands and acting as an individual. She spoke at length about the cultural issues, the family demands and the impact on her of incarceration at a young age for serious drug offences. She said the circumstances behind her criminal offences were not totally of her own making, she was under enormous pressure of her mother and siblings.
  10. [57]
    She said the cognitive dissonance therapy that she provided to HN has been a slow learning process. However HN has started to come to the realisation that what she was doing for her family, didn’t align with her core beliefs and that she was doing harm to herself and therefore, to her son.
  11. [58]
    NN said HN has now grown and matured, she is a loving mother to her child. She can’t say she will never be under her family’s influence again, but she thought HN is in a better position to place boundaries on them. An example of this is that she told her sister and her boyfriend to leave her home. She is protecting her child and her husband now.
  12. [59]
    NN said HN told her that her husband was overseas for about two years working in a family business (he was in prison). She said they spoke by Skype very regularly and they planned for him to return. He was part of HN’s strategy to prevent family influence and any further offending behaviour. She said he was supportive and they work together as a couple. She said they had financial difficulties but they were working these out.

GE’s criminal history

  1. [60]
    HN’s husband, GE has a criminal history dating back to 1992 with convictions for offences including:
    1. (a)
      supply and trafficking dangerous drugs, stealing, common assault, conspiracy to commit crime, contempt of court, fraud, assaults occasioning bodily harm, obtaining or dealing with identification information and false declarations;
    2. (b)
      GE was incarcerated for some of these offences in 1997 with cumulative sentences in 1999, 2004, 2005. He was sentenced to 12 months’ imprisonment in 2012 suspended for three years;
    3. (c)
      GE was sentenced to five years’ imprisonment in 2016 for possession of dangerous drugs, assault or obstruction of police, and breach of suspended sentence. He received a concurrent sentence for obtaining or dealing with identification information and false declarations. He was released from prison in February 2018 and placed on parole until 2022.
  2. [61]
    GE told the Tribunal he met HN through her brother; they were incarcerated together and her brother introduced them. They married in 2007. He said he has been incarcerated a few times, mostly for possession of and selling dangerous drugs. 
  3. [62]
    GE said in 2009 police came to the house looking for evidence about another person. He had some speed and he gave it to his wife to secret as he was on parole at the time and knew he would get into trouble. That is how she came to be charged with the offence.
  4. [63]
    GE said he had been a social and casual drug user for years but in about 2013 he started using ice regularly. He said his business of car detailing ‘went bad’ and he was also involved in a failing restaurant. He didn’t tell HN any details about this. He kept things to himself. He said this was part of the reason their marriage started to fail; that he wasn’t open with her or treated her like a partner.
  5. [64]
    He confirmed he was not working overseas over the past two years, he was in fact charged in 2014 and went to jail for two years. He was released in February 2018 and he remains on parole until 2022.
  6. [65]
    GE said they separated while he was in prison. She didn’t come to visit him and she didn’t want their son to know his father was in jail.
  7. [66]
    He said he is now a reformed man. They have reconciled and he returned to the family home when released from prison. He said he no longer uses drugs. He undertook all courses in prison that were required. He is about to commence a substance abuse maintenance course. He said HN told him she would leave him if he started using drugs again.
  8. [67]
    GE’s strategies for staying out of prison is to ‘hang around church’, study the bible with his wife and attend church every Sunday with his wife. He takes his son to church activities.
  9. [68]
    He does yoga and meditates. He is not money-oriented anymore. He said he is committed to his family and wants to remain in his marriage. He said they have had financial problems and his brother is paying the mortgage on their house.
  10. [69]
    GE said HN’s family has been a bad influence on her. He said they have decided not to allow her family to stay if they are using drugs. He said he would tell them to leave the house and he would ‘bible bash them’ if they didn’t leave the house. GE expects to start a short-term contract removing scaffolding. HN is not in paid employment.

Discussion of the evidence

  1. [70]
    BCS is concerned about the totality of HN’s criminal history and considered this is a pattern of repeated involvement in drug-related activities over an extensive period. Having spent time incarcerated she continued to be involved in drug related activities as recently as 2016. She has also continued to be involved with drug users including her siblings, their partners and her husband. The decision maker identified protective factors:
    1. (a)
      HN has undertaken 20 years of counselling with NN;
    2. (b)
      She provided five witnesses who spoke positively of her character and her interaction with children. However, some referees have limited knowledge of her past offending and HN lied to at least two of the referees, including
      NN about her husband being in jail. She told them he was working overseas;
    3. (c)
      HN has undertaken a two and a half hour training course with a religious organisation about safeguarding children and vulnerable adults;
    4. (d)
      HN cared for some of her younger siblings under the care of the Department of Communities, Child Safety and Disability Services when she was released from custody when her mother was released from custody. There were no recorded concerns of Child Safety for these young people in the Notices to Produce material;
    5. (e)
      NN told the Tribunal she believes it has been a slow process but she is of the view that HN now realises the detrimental influence her family has had on her and her son. NN does not know about HN’s husband’s criminal history; and
    6. (f)
      HN believes she has taken steps to distance herself from her mother and siblings and no longer allows them to stay overnight if they are using drugs.
  2. [71]
    HN says too much weight was put on her criminal offences when the first offences were committed more than 20 years ago. There were no further offences until 2009.  However, not a lot has changed for HN over the years. 
  3. [72]
    HN accepted her husband’s drug use as ‘there was nothing she could do about it’ and he used drugs with friends outside the house. She said he was his own person and this is separate to her. She said she didn’t know he kept drugs in the house.  However, the vial containing amphetamine was kept on a bookshelf in their bedroom and she hid it on herself when police commenced a search of the house. It is difficult to accept she didn’t know drugs were kept in the house or how she rationalises that his illegal behaviour was separate to her and didn’t affect her and her son. Particularly when he was incarcerated on a number of occasions.
  4. [73]
    She said not enough weight was placed on the fact that she is a loving mother. I do not doubt this but she did not put her child first and possibly placed him at risk when she allowed her brother, her sister and her sister’s partner to live with her when she knew they had drug addictions and attracted the attention of police to her house.  Further, at the same time, she stored her brother’s possessions in her house while he was in prison that included 355 bullets that she put in her safe. She said she kept his morphine tablets in her bedroom drawer, she didn’t know what they were but was giving them to her brother when he asked for them. This would demonstrate great naivety and irresponsibility. It is also at odds with her submissions that her brother was in prison at the time that she stored his belongings at her house.
  5. [74]
    HN said not enough weight was put on the fact she had completed a law degree.  However, despite this legal qualification it didn’t prevent her from acting unlawfully on the two occasions she was charged with possession of drugs and ammunition offences.  She further told the Tribunal she did not like studying law and only did this because SA told her to study law.
  6. [75]
    I can understand why she would choose not to tell her church community and friends that her husband was in jail and that he had a lengthy history of drug offences.  However, she lied to NN who has counselled and supported her for 20 years. NN gave evidence that there is a strong trust between them. HN sees both NN and her church community as protective factors. They in turn see her husband as a protective factor in reducing her risk of reoffending and in supporting her to resist the negative influence of her family. On the basis of this belief they were prepared to be witnesses for her. RKY said GE is HN’s ‘rock’, that he supported her via Skype while overseas, and is a gentle spiritual soul.
  7. [76]
    I offered HN the opportunity to correct the record or to clarify anything when two of her witnesses gave evidence that GE was overseas when he was in prison. HN said there was nothing she wished to correct.
  8. [77]
    GE says he would tell HN’s family they couldn’t stay in their home if they were intoxicated or drug affected and he would ‘bible bash’ them until they left. GE and HN say GE is a changed man who no longer associates with drug users, he engages in bible studies every evening and joins his wife at mass every Sunday. RKY has seen him twice at mass. They see this is a protective factor in him not returning to drug use and in supporting HN to resist the demands and expectations of her family.
  9. [78]
    HN said she knows she acted unlawfully on the occasions she was charged but she doesn’t see it that way. She said it was ‘low level criminality’ and rather, that she made poor choices or bad decisions. It was her mother, her husband and her siblings, who caused her to act this way. She sees that she was obeying or protecting them. She said she did this without much thought as she loves them unconditionally.
  10. [79]
    HN continued to explain her actions and offending behaviour as the result of family pressure since at least the early 1990s.
  11. [80]
    HN compartmentalises aspects of her life. For example, she said that her husband’s drug use and associated offences that resulted in prison sentences for him was ‘his doing’, ‘he is his own person’ and that she couldn’t do anything about that, even though this behaviour directly affected her and their young child.
  12. [81]
    I did not find HN to be a credible witness. She was an inconsistent historian and at times untruthful; to her witnesses and in her responses in this Tribunal. She did not present as her own person, able to make decisions that are in the best interests of herself and ultimately her child.
  13. [82]
    HN and two of her witnesses saw GE as a protective factor in her potential for reoffending and in resisting the negative influence of her family. However, GE is recently released from prison, on parole and has an extensive criminal history. HN told me she trusts him implicitly. The potential for further drug offending by GE remains a risk factor.
  14. [83]
    HN said her mother still expects her to help or rescue her family. This is a risk as HN told the Tribunal three of her siblings continue to have drug addictions and associated problems in their lives. After HN was charged in 2016 when her sister and her partner were living with her and were using drugs, HN told them to leave. However, her mother told her she was kicking her sister down when she was in trouble and was unhappy she asked her to leave.
  15. [84]
    From the evidence of NN, HN has come to the realisation she needs to resist these family pressures. NN said this cognitive dissonance has been slow. HN said she has ‘endeavoured to rehabilitate myself far beyond what would have ordinarily been expected by a person in my circumstances and with my background’.
  16. [85]
    However, strategies to resist these pressures and her insight into the effects of her offending on herself, her child and the broader community are not apparent. The supply and trafficking offences occurred over 20 years ago. I accept this is a long time ago when she was a young woman. However, heroin is a Schedule 1 dangerous drug pursuant to the Drugs Misuse Regulation 1987 (Qld). She was involved in trafficking heroin to the street value of $500,000. HN did not express an insight into the effects of these drugs in the community and the risks to children and young people directly or indirectly harmed by this quantity of drugs.
  17. [86]
    Despite having been sentenced for these offences, she was charged again in 2009 and 2016 with drug related offences. She absolved herself of responsibility for her actions and sees the illegal activities of others living in her home as separate to her and having no bearing on her and her son.
  18. [87]
    Her lack of insight and responsibility remain risk factors.
  19. [88]
    I find the risk factors outweigh the protective factors.
  20. [89]
    I agree with the position of BCS, that a person easily and negatively influenced by their family and being oblivious to their spouse’s criminal drug related behaviour, and view this as having no bearing on her or her child, is not reflective of a person who is required to be responsible for a safe and protective environment for children.

Conclusion

  1. [90]
    The holder of a blue card has unsupervised and unfettered access to children in wide-ranging regulated activities. They must be able to have independent thoughts and act in the best interests of children and their welfare is paramount. I am not satisfied HN is able to do this.
  2. [91]
    Based on the findings of fact I have made, and weighing all of the matters in s 226 of the WWC Act and the other circumstances I have considered, the risk factors identified during the proceedings render the case an exceptional case in which it would not be in the best interests of children and young people for HN to be issued with a positive notice a blue card.
  3. [92]
    I therefore confirm the decision of DJAG under review.

Non-publication

  1. [93]
    I order that publication of the names of the applicant, her family and witnesses and any other information that could identify the child in any way other than to the parties to the proceedings is prohibited  pursuant to s 66(1)(a) of the QCAT Act.
  2. [94]
    Accordingly these reasons are published in a de-identified format.

Footnotes

[1]  Child-related employment decision is defined to include a chapter 8 reviewable decision: s 358.

[2]  WWC Act, s 5.

[3]  Ibid s 360. See also s 6.

[4]  Ibid s 221.

[5]  Ibid s 225(1)(c).

[6]  Ibid s 225(1)(c).

[7] Re FAA [2006] QCST 15, [22].

[8]  Ibid [29], citing the second reading speech Commissioner for Young Children and Young People Bill, 4,391.

[9]  [2008] WASCA 171.

[10]  Notice to Produce material, Department of Child Safety, Youth and Women ICMS, 10-40.

[11]  Email submission to BCS, 19 August 2016.

[12]  Letter dated 8 November 2016, from her legal representatives.

Close

Editorial Notes

  • Published Case Name:

    HN v Director-General Department of Justice and Attorney-General

  • Shortened Case Name:

    HN v Director-General Department of Justice and Attorney-General

  • MNC:

    [2018] QCAT 346

  • Court:

    QCAT

  • Judge(s):

    Member Murray

  • Date:

    22 May 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
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
2 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
1 citation
Jump To
Cite 1 - [2004] QCA 492
Re FAA [2006] QCST 15
3 citations
Jump To
Cite 1 - [2006] QCST 15
Cite 2 - [2006] QCST 15
Cite 3 - [2006] QCST 15
RPG v Public Safety Business Agency [2016] QCAT 331
1 citation
Jump To
Cite 1 - [2016] QCAT 331

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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