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CITE

Unreported Judgment

Parry v Director-General, Department of Justice and Attorney-General[2018] QCAT 358Member McLean Williams
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Parry v Director-General, Department of Justice and Attorney-General[2018] QCAT 358

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Parry v Director-General, Department of Justice and Attorney-General [2018] QCAT 358
PARTIES:	TIMOTHY PAUL PARRY (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent)
APPLICATION NO/S:	CML059-18
MATTER TYPE:	Childrens matters
DELIVERED ON:	30 October 2018
HEARING DATE:	6 September 2018
HEARD AT:	Brisbane
DECISION OF:	Member McLean Williams
ORDERS:	The decision dated 15 February 2018 of Michelle Miller, Director Blue Card Services (Screening Services) Unit, within the Department of Justice and Attorney-General is set aside, and replaced by the Tribunal’s decision that the Applicant’s case is not an exceptional case.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether the Applicant’s case is an ‘exceptional case’ – questions as to relevance of family law parenting considerations in blue card assessments Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 167, s 168, s 169, s 174, s 220, s 221, s 229, s 226, s 257, s 311, s 354, s 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 RPG v Public Safety Business Agency [2016] QCAT 331 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Hogan v Hogan [2008] FMCA(Fam) 1219 Lloyd v Department of Justice and Attorney-General [2018] QCAT 330
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	I McCowie, legal officer of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

[1]
On 15 February 2018 the Director of Blue Card Services (Screening Services) within the Department of Justice and Attorney-General advised Mr Timothy Paul Parry (‘Mr Parry’) of her decision to issue a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’).
[2]
The effect of Ms Miller’s decision is that Mr Parry becomes ineligible to hold a blue card, and thus becomes unable to move into any form of employment that may require him to work with children.
[3]
Under s 354 of the Act, a person in this position may apply to QCAT for a review. On 1 March 2018, Mr Parry filed an Application for Review of Ms Miller’s decision before the Tribunal. The matter ultimately came to be heard before me, on
6 September 2018.

Legal Framework

[4]
As noted by Carmody J in RPG v Public Safety Business Agency,^[1] the blue card regime seeks to ensure child safety by allowing only eligible adults to either work with, or care for, other people’s children, when undertaking what is termed ‘regulated employment’.
[5]
The blue card regime is administered by Blue Card Services, within the Department of Justice and Attorney-General. The major function of Blue Card Services is to engage in a screening process to determine who will be issued with a blue card, by means of a system of ‘positive’ and ‘negative’ notices.^[2] Those who obtain a positive notice may obtain a blue card, and may work with children. Those given a negative notice may not apply for, or start, or continue in, regulated employment.^[3]
[6]
Upon the making of any blue card application, Blue Card Services commences background enquiries. These include obtaining from the commissioner of police under s 311 what the Act terms ‘police information’, which may include the applicant’s criminal history.
[7]
In the ordinary course, a positive notice must be issued to a person if the chief executive is not aware of any police information or disciplinary information about the person, or a conviction of the person for any offence.^[4] The fact of police information existing about an applicant is not an automatic^[5] disentitlement from eligibility for a blue card, but does require further consideration by Blue Card Services, as to whether it is still in the best interests of children to issue a positive notice, in light of the fact of there being police information.
[8]
In circumstances where Blue Card Services becomes aware of police information,
s 229 requires that the Applicant be informed, and provided with a copy. Section 229 also requires that the applicant be invited to make submissions in response, and these must be considered, before the application is determined.
[9]
In the case now before the Tribunal, Blue Card Services had become aware of
Mr Parry having prior criminal convictions. They wrote to him on 29 March 2017, informing him of that. Mr Parry then made oral submissions in response thereto on 18 April 2017. Further written submissions and copies of various personal references were provided to Blue Card Services by Mr Parry later that month, followed by further oral submissions, during another interview, on 10 May 2017.
[10]
On 19 October 2017, Blue Card Services again wrote to Mr Parry, this time because it had received copies of brief(s) of facts, relevant to some of Mr Parry’s convictions. These are the brief factual summaries presented by police prosecutors in the Magistrates Court, to inform the court of the factual circumstances of the offence, prior to sentencing. Mr Parry was then given a further period within which to make any additional submissions. Some further character references were then sent to Blue Card Services, by Mr Parry both in October, and November 2017.
[11]
Ultimately, Ms Miller wrote to Mr Parry on 15 February 2018 advising that her decision was to issue a negative notice. This is the decision that is now subject to review before the Tribunal.

QCAT Review

[12]
The purpose of the review before QCAT is for the Tribunal to produce what the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) terms the ‘correct and preferable’ decision, after a fresh hearing, on the merits.^[6] In so doing, the objects^[7] of the Working with Children Act must be upheld. That is reaffirmed by
s 360, which provides that a child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child (or children) remains paramount.
[13]
As already indicated, Mr Parry does have a criminal history, albeit not for any disqualifying,^[8] or serious^[9] offences. As such, Mr Parry becomes a person subject to the operation of ss 221(1)(c) and 221(2) of the Working with Children Act. Thereunder, a positive notice may still be issued, albeit not without further consideration of the implications of that criminal history.
[14]
Section 221 provides:

(1)
Subject to subsection (2), the chief executive must issue a positive notice to the person if-

(a)
the chief executive is not aware of any police information or disciplinary information about the person; or

(b)
the chief executive is not aware of a conviction of the person for any offence, but is aware that there is 1 or more of the following about the person-

(i)
investigative information;

(ii)
disciplinary information;

(iii)
a charge for an offence other than a disqualifying offence;

(iv)
a charge for a disqualifying offence that has been dealt with other than by a conviction; or

(2)
If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.

[15]
The term ‘exceptional case’, as used in s 221(2), is undefined. Accordingly, the question as to what may amount to an exceptional case becomes a question of fact to be decided in each case, yet having regard to:

…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.^[10]

[16]
On this review it is necessary to again consider Mr Parry’s prior convictions. When doing that, it is not sufficient to look only at the fact of an entry on Mr Parry’s Court Record. The necessary examination is akin to that required during an investigation of fitness and propriety, as required for admission to the legal profession. In that context, Fullager J in Ziems v The Prothonotary of the Supreme Court of New South Wales^[11] observed it to be necessary, in most cases, to look behind the fact of the conviction, so as to assess the ‘real facts of the case.’^[12] For, it is only when that task is undertaken that the Court may properly assess the conduct underlying a conviction, so as to understand how (if at all) it bears on an assessment of the applicant’s suitability.
[17]
In the particular context of ascertaining whether there is an exceptional case requiring the issue of a negative notice, the Act mandates regard for the matters set out in
s 226(2). Section 226(2) is not to be treated as an exhaustive list, and does not expressly or impliedly confine the Tribunal to considering only those matters specified therein. Rather, the matters set out in s 226(2) are ‘merely certain particular matters which the [Tribunal] is obliged to consider in deciding the application’.^[13]
[18]
Section 226 provides:
1. (1)
  This section applies if the chief executive-
  1. is deciding whether or not there is an exceptional case for the person; and
  2. is aware that the person has been convicted of, or charged with, an offence.
2. (2)
  The chief executive must have regard to the following –
  1. In relation to the commission, or alleged commission, of an offence by the person –
    (i)
    whether it is a conviction or a charge; and
    (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
    (iii)
    when the offence was committed or is alleged to have been committed; and
    (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
    (v)
    in the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
  2. Any information about the person given to the chief executive under section 318 or 319;
  3. Any report about the person’s mental health given to the chief executive under section 335;
  4. Any information about the person given to the chief executive under section 337 or 338;
  5. Anything else relating to the commission, or alleged commission, or the offence that the chief executive reasonably considers to be relevant to the assessment of the person.

Mr Parry’s criminal history

[19]
Mr Parry’s criminal history reveals the following:
1. (a)
  On 24 August 2001 (when aged 18), Mr Parry was convicted of obstructing a police officer on 15 August 2001. He was fined $200 by the Maroochydore Magistrates Court. No conviction was recorded.
2. (b)
  On 15 October 2001 (when aged 19), Mr Parry was fined $300 by the Maroochydore Magistrates Court for possessing marijuana. No conviction was recorded. The penalty was dealt with by way of a fine option order.
3. (c)
  On 21 February 2002 (when aged 19), Mr Parry appeared before the Maroochydore Magistrates Court for breaching the fine option order imposed on 15 October 2001.
4. (d)
  On 17 October 2003 (when aged 21) Mr Parry was convicted of possessing 0.3 grams of marijuana on 1 August 2003. He was also dealt with on that day for contravening a police direction. In relation to the drug offence, he was fined $450 and no conviction was recorded.
5. (e)
  On 27 May 2004 (when aged 21), Mr Parry was convicted by the Maroochydore Magistrates Court of having supplied marijuana; possessing a pipe used in conjunction with marijuana; and stealing. He was convicted and given
  12 months’ probation. Mr Parry informed the Tribunal that the particulars of the supply charge was the fact that he had packed a cone of marijuana for flatmates, before passing it to them.
6. (f)
  On 20 January 2005 (when aged 21), Mr Parry was convicted by the Maroochydore Magistrates Court for having breached the probation order made at his previous court appearance, on 27 May 2004. He was convicted and fined $150.
7. (g)
  On 3 October 2008 (when aged 26), Mr Parry was convicted by the Maroochydore Magistrates Court of possessing marijuana and a homemade bong on 20 August 2008. He was convicted and ordered to undertake probation for a period of 12 months.
8. (h)
  On 1 June 2011 (when aged 28), Mr Parry appeared in the Maroochydore Magistrates Court charged with possessing less than one gram of marijuana, and a homemade bong on 13 April 2011. No conviction was recorded. He was placed on a $250 recognisance, to be of good behaviour for a period of 4 months.
9. (i)
  On 27 January 2012 (when aged 29) Mr Parry was fined $100 by the Maroochydore Magistrates Court for contravening a lawful direction. No conviction was recorded.
10. (j)
  On 20 November 2012 (when aged 30), Mr Parry was fined $300 by the Maroochydore Magistrates Court for his having failed to appear before the court in accordance with an undertaking. No conviction was recorded.
11. (k)
  On 18 February 2013 (when aged 30), Mr Parry was convicted and fined $300 by the Maroochydore Magistrates Court for possessing 14.1 grams of marijuana on 4 September 2012, as well as a metal cone associated with smoking marijuana. Mr Parry had informed the police that the marijuana was for his own personal use.
12. (l)
  On 1 May 2015 (when aged 32 years) Mr Parry was convicted and given probation for 12 months by the Maroochydore Magistrates Court for a burglary, committed sometime between 5 and 13 August 2014. That offence arose in circumstances where Mr Parry had assisted a female acquaintance to remove items from the garage of a house occupied by her former partner, after a breakdown of that relationship. This is the most serious offence on Mr Parry’s criminal history.
13. (m)
  On 21 March 2016 Mr Parry was dealt with by the Magistrates Court at Cairns, in relation to unauthorised dealing with shop goods (ie shoplifting); his possessing 33 marijuana seeds; and a glass drug pipe. These offences all occurred on the Sunshine Coast, on 16 December 2015. Mr Parry informed the Tribunal that he and a female associate had been detected sitting in his car in the car park, at Bunnings. His car also happened to be unregistered. Mr Parry was fined $150 for the shop stealing; given 12 months’ probation on the drug charges; and also disqualified from driving for a period of one month. Convictions were recorded. These matters were dealt with in Cairns because Mr Parry happened to be in Cairns undergoing residential drug rehabilitation at the time of his court appearance.

Mr Parry’s Evidence

[20]
Mr Parry indicates that he was born in Brisbane in 1982, as the youngest of four siblings. The family moved to the Sunshine Coast in 1983, when Mr Parry was still just an infant. Mr Parry’s primary schooling at Stella Marist School was uneventful until grade six, when Mr Parry says that he became the victim of bullying. Because of it, he changed to Mountain Creek State School for grade seven. In grade eight, Mr Parry commenced high school at St John College, at Nambour.
[21]
From a young age, Mr Parry had been a gifted soccer player, and had been selected to represent district and state teams. Because of that sporting prowess, Mr Parry was offered a full boarding scholarship to attend St Joseph’s College at Nudgee. He started at Nudgee in grade nine, and was immediately put into the First Eleven, playing alongside boys who were up to four years his senior. He says that he was never especially academic, but that was overlooked at Nudgee, due to his sporting ability.
[22]
Mr Parry says that, as a sports scholarship holder, he was required to train five times per week, as well as to play up to two matches, per week. This went on for a number of years such that by the time he had completed grade eleven he was suffering from burnout, and no longer wished to play soccer. This led Mr Parry to ‘start hanging out with a different crowd’, and to experiment with marijuana.
[23]
In 2000, whilst mid-way through grade 12, Mr Parry says that he was expelled from Nudgee and had to move back to the Sunshine Coast to live with his parents, much to their shame and surprise. This marked a low point in Mr Parry’s relationship with his parents. However worse was soon to come.
[24]
Mr Parry was enrolled to continue with grade 12 at Mountain Creek State High School, yet was expelled again, just a few weeks later. In consequence Mr Parry’s relationship with his parents fell to pieces, and he was asked to move out.
[25]
Thus finding himself on the streets, in what he terms a vulnerable and lonely state, Mr Parry says that he started to use marijuana very frequently. For the next few years Mr Parry moved around a lot, mostly couch surfing between friends, and subsisting on welfare payments. He did manage, at least for short periods, to obtain a succession of casual jobs. Each of these he quickly lost, because he proved to be unreliable. By early 2002, Mr Parry says that he also started to use the drug Methyl-amphetamine, more commonly known as “ice”.
[26]
For the next few years Mr Parry says that he fell into a pattern of using marijuana virtually every day, and ice on most weekends. Despite the turbulence, some aspects of his life did become more stable. He managed to obtain regular employment as a plant operator (mostly road construction work), and formed a stable relationship with his partner Joselyn, whom Mr Parry has known since primary school. There are now 2 children of that relationship, a daughter now aged 11, and a son, now aged 3.
[27]
An interesting dimension in this case is that Mr Parry was able for a number of years to keep his drug use hidden from Joselyn, and his wider family. Indeed, Joselyn has separately informed the Tribunal that she was not even aware of Mr Parry’s drug use until late in 2014, when Mr Parry finally confessed this to her, a few weeks after having lost his job.
[28]
Mr Parry says that he never smoked marijuana or used any other drugs at home, and would only use drugs elsewhere. Oftentimes, Mr Parry was required to travel away from the Sunshine Coast to work in road construction. Mr Parry says that drug use amongst travelling road construction crews was rampant. On weekends, he would go out to socialise with friends - leaving his partner and children at home - and would also use drugs on those occasions. At the worst point, Mr Parry says that he was using ice up to three or four times per week, as well as smoking marijuana.
[29]
Mr Parry says that the zenith of his drug use was around the time when he was charged with the burglary offence, in August 2014. Mr Parry says that this was the first time that he had been charged with a more serious offence, and he began to realise that if things continued along this path, then he would eventually be imprisoned. Although having never actually been charged with a drug offence for using ice, Mr Parry also elected to be enrolled to do the QMERIT^[14] program in 2014, to help deal with his rising concerns about having an ice addiction, and because Joselyn was by now aware of the problem. Unfortunately, Mr Parry says that he found the QMERIT program to be insufficiently interventionist, as he experienced two drug relapses within the first seven weeks after having completed it.
[30]
Around this time Mr Parry’s relationship with his partner Joselyn also began to completely fail, because of his continuing drug-related absences. In about March 2015 Jocelyn had finally had enough, and ordered him out of their home.
[31]
Mr Parry’s last offence took place on 16 December 2015. By that stage he was back to either living on the streets or couch surfing around the Sunshine Coast. On the day in question, Mr Parry was in company with a female acquaintance, with whom he had been sharing drugs. Mr Parry was initially detected by a Loss Prevention Officer at Bunnings, who had observed Mr Parry take a tip for a welding torch, yet without paying for it. The police were called. Mr Parry and the female were then apprehended sitting in Mr Parry’s car, in the car park. A search found the welding tip; a plastic clip-seal bag containing 33 marijuana seeds; and a glass pipe, used for smoking drugs. When asked by the Tribunal what the purpose was behind his stealing of a welding tip, Mr Parry candidly admitted that it had been his intention to use it to make another pipe, to smoke drugs.
[32]
For Mr Parry, the offence on 16 December 2015 marked a final turning point, and a realisation that he needed to escape from the influence of other drug users on the Sunshine Coast, if he were to be able to give up drugs.
[33]
Mr Parry initially enrolled as an in-patient at HADS,^[15] in Brisbane to undergo a medically supervised withdrawal. After HADS, and so as to escape from the risk of once more falling under the influence of past drug associates, Mr Parry enrolled in a program conducted by the ‘Ozcare’ Drug & Alcohol Residential Recovery Service, at Cairns. Throughout this eleven week residency Mr Parry was subject to random urinalysis, and passed each test, as required.
[34]
Upon his first arrival back on the Sunshine Coast, Mr Parry moved in with his parents, and attended meetings of Narcotics Anonymous (‘NA’), twice per week for about 12 weeks, and then less often, for a further few months. Mr Parry ceased attending NA only after consulting his NA sponsor, and assessing that he likely now had sufficient structure and positive support in his life that he could manage without further meetings.
[35]
In an effort to avoid the risk of a relapse, Mr Parry has deliberately severed all ties with past drug associates, and no longer frequents those parts of the Sunshine Coast where he may risk coming in to regular contact with any of them.
[36]
In an effort to mix with socially constructive people, Mr Parry has also taken up lawn bowls. Initially, Mr Parry was introduced to bowls by his mother, and played as often as 3 times, per week. Now, because he is more busy, with paid employment, study and parenting commitments, Mr Parry plays bowls only on Saturdays, yet still regards membership of the bowls club as an important and socially constructive influence.
[37]
About seven months after returning from Cairns - and by now fully free from the influence of drugs - Mr Parry was accepted back by his partner Joselyn, and returned home to live with her and their children. As Joselyn undertakes shift work, Mr Parry has taken on the primary responsibility for school pick-ups and drop-offs, and for doing many of the household chores.
[38]
Determined not to return to road construction, (an industry that Mr Parry has said is plagued with endemic drug use), he instead enrolled in a Certificate III in Disability Services and a Diploma in Community Service, and these studies have led to alternative paid employment, working 25–30 hours per week, as a disability support worker with ‘Community Focus’. Mr Parry also still continues to study at TAFE, one day per week.
[39]
Community Focus provides support and outreach services to adults in the community with chronic mental health conditions and related disabilities. Mr Parry says that his employer is aware of his past drug addiction, and that his colleagues at Community Focus are now an important part of the support scaffold that assists him to continue to remain drug-free. Mr Parry says that he enjoys his work and his related studies, and feels that he has now found his purpose in life, and a career calling. Eventually, Mr Parry wishes to advance his studies by undertaking a Certificate IV to qualify to do ‘peer support’ work, in mental health.
[40]
Mr Parry does not presently require a blue card, as the clientele of Community Focus are all persons aged over 18 years. Mr Parry is however mindful that by his having opted for a career in community services means that it is probable that he will need to be able to work with young people in the near future.
[41]
I regard the fact of Mr Parry’s current employment with Community Focus to be a relevant factor that should count in favour of Mr Parry’s suitability to hold a blue card. Through this employment, Mr Parry has demonstrated a capacity to be trustworthy and reliable when working with another group of vulnerable people.
[42]
Mr Parry says that he has remained completely drug free since December 2015, and has absolutely no intention of ever returning to the use of illicit drugs.

Witnesses

[43]
Direct testimony or written statements were received before the Tribunal from the following persons, in support of Mr Parry:
1. (a)
  Ms Deborah Fleming a community access worker at Community Focus, who is also the student work experience co-ordinator;
1. (b)
  Mr Anthony Gibbs, social worker at Community Focus;
2. (c)
  Ms Joselyn Anderson, the partner of the Applicant Mr Parry and the mother of his children;
3. (d)
  Mr Geoffrey Grainger, who is an uncle of the Applicant;
4. (e)
  Dr Chris Summers a family friend of the Applicant who also works as a counsellor for Education Queensland;
5. (f)
  Mr Bernard Noone and Mrs Vikki Noone, who are the parents of the Applicant’s partner, Ms Joselyn Anderson; and
6. (g)
  Ms Louise Parry, who is the School Principal of the Bauple State School, and the eldest sister of the Applicant.
[44]
I do not propose to traverse all of the evidence given by each of these people. Suffice to say that all of them were aware of Mr Parry’s past drug addiction and were able to testify in relation to the rehabilitation from drugs that Mr Parry has since undergone. All of these people understood the purpose of the blue card regime, and did not regard Mr Parry as presenting any kind of risk to children.
[45]
Joselyn Anderson confirmed that Mr Parry had never used drugs or been under the influence of drugs in the presence of their children. She had required him to move out of the family home, because of it. Ms Anderson did not reconcile her relationship with Mr Parry until approximately seven months after his return from rehabilitation in Cairns, once she was completely satisfied that he was fully rehabilitated and free from drugs. During that intervening period Mr Parry was not allowed by her to have other than supervised access to his own children.
[46]
Ms Fleming and Ms Gibbs, are each persons with experience in dealing with persons who are vulnerable to the risk of drugs. Each was unequivocal in their view that Mr Parry had undergone a successful rehabilitation and that his returning to drugs was now improbable.
[47]
I accept all of that witness evidence. None of it was challenged by Blue Card Services.

Section 226(2) matters

[48]
Section 226(2) of the Working with Children Act requires that in cases where a person has been convicted of, or charged with, an offence that regard be had for certain matters identified therein:

(i) Whether the offence is a conviction or a charge

[49]
Mr Parry pleaded guilty to all of the offences that appear as part of his criminal history. Mr Parry has not ever been convicted of a drug offence for any drug other than marijuana. Despite that, he has admitted to having used Ice, and that it was his growing dependency on this drug, in particular, that caused him to seek out help and to enter rehabilitation. That Mr Parry initially relapsed into drugs after the QMERIT program is not a factor that should count against him. The more relevant factor is that he persisted with the effort, and eventually overcame his illicit drug addiction.

(ii) Whether the offence is a serious offence, and, if it is, whether it is a disqualifying offence

[50]
None of the offences committed by Mr Parry are either ‘serious’ or ‘disqualifying’ for purposes of the Working with Children Act.

(iii) When the offence was committed or is alleged to have been committed

[51]
The offences were committed between 15 August 2001 (when Mr Parry was aged just 18) and 16 December 2015, when Mr Parry was aged 33. Mr Parry has informed the Tribunal that all of his offences are for drug use, or arose out of drug use.
[52]
Mr Parry is now drug abstinent, and has been so, since December 2015. As at the date of the hearing before the Tribunal Mr Parry has not used any illicit drugs for two years and eight months.

(iv) The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children

[53]
The nature of Mr Parry’s offending behaviour has already been discussed by me, in these reasons for decision. None of his offending behaviour involved offences against children, or any element of child endangerment. On an objective assessment of all of the evidence the nature of that offending behaviour is of negligible relevance to any prospective employment by Mr Parry in regulated employment.

(v) In the case of a conviction the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under section 357, the Court’s reasons for its decision.

[54]
No additional information has been placed before the Tribunal

Section 226(2)(b): Any information about the person given under section 318 (from the Director of Public Prosecutions) or section 319 (from Corrective Services relating to sexual offender orders) of the Act

[55]
No information has been placed before the Tribunal

Section 226(2)(c): Any report about the person’s mental health status given under section 335 (from a registered health practitioner) of the Act

[56]
No information has been placed before the Tribunal.

Section 226(2)(d): Any information about the person given under section 337 (from the Mental Health Court) or section 338 (from the Mental Health Review Tribunal) of the Act

[57]
No information has been placed before the Tribunal.

Section 226(2)(e): Anything else relating to the commission, or alleged commission, of the offence that is reasonably considered to be relevant

[58]
There are no other factors specifically relating to Mr Parry’s offending history that are relevant to questions of child safety in the context of regulated employment.
[59]
In the reasons for decision dated 15 February 2018, when originally deciding that an exceptional case did exist, the original decision maker placed reliance, at page eleven, on dicta comments, from the judgment of (then) Federal Magistrate Altobelli, in Hogan v Hogan.^[16] These comments arose in the context of contested family law parenting proceedings, as well as findings by that court, at [55], of ongoing and uncontrolled drug addiction, by the respondent father.
[60]
It warrants comment from the Tribunal that there are a number of quite obvious difficulties with this attempt at analogous reasoning. Those observations were made in the context of actual findings by the Federal Magistrate of persisting drug use, which can hardly now be said to be the case with Mr Parry. At an even more fundamental level, it is neither helpful, nor relevant to attempt to draw on factors that arise in the context of family law parenting proceedings during a blue card assessment. Although factual evidence from prior family law proceedings involving a specific applicant^[17] may be relevant in a blue card determination, the same cannot be said for extrapolations drawn more broadly from other parenting decisions that do not involve the person under assessment. In parenting cases, quite different considerations apply to those that arise in the context of a blue card assessment. Here, the proper frame for deliberation must always be fixed on the question of suitability for participation in regulated employment.
[61]
The decision of the Respondent that the Applicant’s case is an exceptional one within the meaning of s 221(2) of the Working with Children Act is now set aside, and is replaced by the Tribunal’s decision that there is no exceptional case.

Footnotes

[1] [2016] QCAT 331, [18]–[19].

[2] Working with Children Act, s 220.

[3] Working with Children Act, s 257.

[4] Working with Children Act, s 221.

[5] Prior conviction for a ‘serious offence’ or ‘disqualifying offence’ are an exception.

[6] QCAT Act, s 20.

[7] Working with Children Act, s 5

[8] ‘Disqualifying offences’ are defined in s 168 of the Working with Children Act. A ‘Disqualified Person’ (s 169) may not even apply for a blue card: s. 174.

[9] ‘Serious’ offences are defined in s 167 of the Working with Children Act.

[10] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, 31.

[11] (1957) 97 CLR 279.

[12] Ibid 288.

[13] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 (Philippides J).

[14] The QMERIT program is a voluntary, bail-based diversion program for defendants charged with an offence relating to illicit drug use.

[15] The Hospital Alcohol and Drug Service (‘HADS’) is a state-wide service providing inpatient withdrawal or stabilisation for people with alcohol and other drug dependency.

[16] [2008] FMCA Fam 1219, [33]. The original decision erroneously attributes this statement to the Full Court of the Family Court.

[17] Consider, for example: Lloyd v Department of Justice and Attorney-General [2018] QCAT 330, 28 September 2018.

Editorial Notes

Published Case Name:
Timothy Paul Parry v Director-General, Department of Justice and Attorney-General
Shortened Case Name:
Parry v Director-General, Department of Justice and Attorney-General
MNC:
[2018] QCAT 358
Court:
QCAT
Judge(s):
Member McLean Williams
Date:
30 Oct 2018

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Commissioner for Children and Young People and Child Guardian v FGC	[2011] QCATA 291	2 citations Jump To Cite 1 - [2011] QCATA 291 Cite 2 - [2011] QCATA 291
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
Hogan v Hogan	View on:JADE(2008) FMCA fam 1219	2 citations Jump To Cite 1 - (2008) FMCA fam 1219 Cite 2 - (2008) FMCA fam 1219
Lloyd v Department of Justice and Attorney-General	View on:SCLQ[2018] QCAT 330	2 citations Jump To Cite 1 - [2018] QCAT 330 Cite 2 - [2018] QCAT 330
RPG v Public Safety Business Agency	[2016] QCAT 331	2 citations Jump To Cite 1 - [2016] QCAT 331 Cite 2 - [2016] QCAT 331
Ziems v Prothonotary of the Supreme Court of N.S.W.	View on:JADE(1957) 97 CLR 279	2 citations Jump To Cite 1 - (1957) 97 CLR 279 Cite 2 - (1957) 97 CLR 279

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Parry v Director-General, Department of Justice and Attorney-General[2018] QCAT 358