Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2018
  4. Paterson v Director-General, Department of Justice and Attorney-General - [2018] QCAT 359

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Paterson v Director-General, Department of Justice and Attorney-General[2018] QCAT 359

Paterson v Director-General, Department of Justice and Attorney-General[2018] QCAT 359

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Paterson v Director-General, Department of Justice and Attorney-General [2018] QCAT 359

PARTIES:

KIRK JAMES PATERSON

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML180-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

23 October 2018

HEARING DATE:

24 September 2018

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

ORDERS:

The decision dated 28 June 2017 of Michelle Miller, Director of the Screening Services Unit, Blue Card Services within the Department of Justice and Attorney-General, that the Applicant’s case is an exceptional one within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) 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 – OTHER MATTERS – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – Applicant blue card holder originally charged with a ‘serious offence’ – aggravating circumstances of charge withdrawn and Applicant instead prosecuted for a non-serious offence – whether the Applicant’s case is an ‘exceptional case’

Working with Children (Risk Management and Screening Act) 2000 (Qld), s 5, s 167, s 221, s 226, s 229, s 237, s 257, s 310, s 354

Drugs Misuse Act 1986 (Qld), s 6, s 9

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

RPG v Public Safety Business Agency [2016] QCAT 331

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 FGC [2011] QCATA 291

Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

I McGowie, legal counsel of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    On 26 July 2017, Mr Kirk James Paterson (‘Mr Paterson’) filed an Application to review the decision of Ms Michelle Miller, the Director of the Screening Services Unit, Blue Card Services within the Department of Justice and Attorney-General.
    Ms Miller’s decision, as made on 28 June 2017, had been to cancel Mr Paterson’s positive notice and blue card, and to instead issue a negative notice (‘the decision’).
  2. [2]
    The decision, made pursuant to s 237(1)(b) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Working with Children Act’), was due to a change in Mr Paterson’s police information having been notified to Blue Card Services. The effect of the decision is that Mr Paterson becomes ineligible to hold a blue card, and becomes unable to partake in any form of employment that may require him to work with children.
  3. [3]
    Under s 354 of the Working with Children Act, a person in this position may apply to QCAT for a review. Mr Paterson has filed an Application for Review before the Tribunal. The matter ultimately came to be heard before me, on 24 September 2018.

Legal Framework

  1. [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 the Working with Children Act terms as ‘regulated employment’.
  2. [5]
    The blue card regime is administered by Blue Card Services. 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 as of right, and may work with children. Those given a negative notice may not apply for, or start, or continue in, regulated employment.[3]
  3. [6]
    Mr Paterson was originally issued with a positive notice and a blue card on 8 February 2016. Like any person who becomes the holder of a blue card, s 310(a) of the Working with Children Act then applied to Mr Paterson, thus making him a person subject to
    s 317. Under s 317, the Police Commissioner has an obligation to notify Blue Card Services if a blue card holder is subsequently charged with, or convicted of, a new offence (‘new police information’).
  4. [7]
    Upon receipt of new police information, Blue Card Services may, under s 237(1)(b), cancel the positive notice and substitute a negative notice, if it is considered to be appropriate to do that. In circumstances where Blue Card Services are considering the cancellation of a positive notice and blue card, s 229 requires that the blue card holder must be informed; provided with a copy of the new police information; and invited to make submissions in response to the new police information. Any submissions that are made by the blue card holder must then be considered by Blue Card Services, as part of the deliberations as to whether the positive notice and blue card will be cancelled.
  5. [8]
    In the case now before the Tribunal, Blue Card Services had become aware of
    Mr Paterson having new police information when, on 5 August 2016, Blue Card Services became aware of a Charge Notification Sheet and Court Brief indicating that Mr Paterson had been charged by the police on 4 August 2016, with two offences under the Drugs Misuse Act (1986) (Qld) (‘the DMA’).
  6. [9]
    The newly charged offences were:
    1. (a)
      one charge of aggravated supply of a Schedule 1 dangerous drug (an offence against s 6(1)(a) of the DMA); and
    2. (b)
      one charge of possessing a Schedule 1 dangerous drug (an offence against s 9(a) of the DMA).
  7. [10]
    These charges arose in circumstances where Mr Paterson had been purchasing health supplements from overseas by means of the internet. Mr Paterson suffers from Charcot-Marie-Tooth (CMT) disease, an incurable degenerative neurological condition, noted for causing peripheral neuropathy and muscle wasting to the hands, wrists and lower limbs. This condition had been diagnosed in 2011, whereupon Mr Paterson had embarked on a quest to find compounds that could help to slow the progression and worst effects of CMT. Mr Paterson’s amateur research efforts identified a range of health supplements that might be beneficial, so he started to purchase these from overseas, as well as to on-sell some, to help defray the costs of his own use.
  8. [11]
    Some of the health supplements imported by Mr Paterson contained a compound termed ‘Androsta 3.5-diene-7.17-dione’. Although not specifically listed as a prohibited drug in the Drugs Misuse Regulation (1987) (Qld), Androsta 3.5-diene-7.17-dione, does have a chemical structure similar to that of Dehydroepiandrosterone (‘DHEA’), a steroid that is listed as a Schedule One drug in the DMA; thus making it an illegal ‘dangerous drug’, in Queensland.
  9. [12]
    The illegal status of Androsta 3.5-diene-7.17-dione was not known to Mr Paterson prior to his home being raided by the Queensland Police Service Synthetic Drug Squad, on 4 August 2016. The Synthetic Drug Squad had received a tip-off from the Postal Imports Surveillance Section of Border Force,[4] that Mr Paterson had been importing these substances, after his mail had been intercepted and opened, by Border Force.
  10. [13]
    Up until the arrival of police officers on his doorstep, Mr Paterson had rather naively assumed that health supplements that are able to be legally purchased from retailers in the United States, the United Kingdom (and most countries in Europe) must therefore also be legal, in Queensland. Mr Paterson’s mistaken belief in that regard was further entrenched by the fact that he could not find any reference to any of the ingredients listed in the health supplements that he was importing as prohibited items on the website maintained by the Therapeutic Goods Administration (‘TGA’).[5]
  11. [14]
    Blue Card Services wrote to Mr Paterson on 11 November 2016 informing him of the new police information, and advising that the fact of these new charges raised concerns regarding his suitability to continue to hold a positive notice and blue card. Mr Paterson was invited to make a submission to Blue Card Services about that. Subsequently, Mr Paterson made written submissions on 16 November 2016, and on 24 November 2016 forwarded some personal references, under cover of an e-mail.
  12. [15]
    On 8 June 2017, Blue Card Services provided Mr Paterson with additional police information, in the form of the results of a further police check, which had been conducted on 26 May 2017. This did not reveal any further information yet Mr Paterson was nonetheless invited to provide further submissions, which he did, by way of another e-mail, on 14 June 2017.
  13. [16]
    Ultimately, Ms Miller wrote to Mr Paterson on 29 June 2017 advising that her decision (made on 28 June 2017) was to cancel his positive notice and blue card, and to issue a negative notice, having determined that Mr Paterson’s case was an ‘exceptional’ one, under s 221(2) of the Working with Children Act. This is the decision that is now subject to review before the Tribunal.
  14. [17]
    Since the date of the making of Ms Miller’s decision cancelling Mr Paterson’s positive notice and blue card, the police charges that had caused the making of that decision have been finalised, on 10 May 2018, by the Magistrates Court at Cleveland.
  15. [18]
    Originally, the new police information sent to Blue Card Services on 5 August 2016 (and then as confirmed on 26 May 2017) had indicated that Mr Paterson had been charged with an offence under s 6(1)(a) of the DMA. This is the offence of supplying a ‘Schedule One’ dangerous drug in the aggravating circumstance of supply to a minor under 16 years of age. Under the Working with Children Act this amounts to a ‘serious offence’, as defined in s 167.
  16. [19]
    In actual fact, Mr Paterson had never supplied dangerous drugs to children, and the police had included this aggravating circumstance, in error. That mistake was eventually corrected, just prior to Mr Paterson being dealt with by the Court on 10 May 2018. The effect of that amendment was that on the morning of the court hearing Mr Paterson no longer stood charged with a ‘serious offence’ for purposes of the Working with Children Act, and nor was he convicted of a serious offence. Mr Paterson then pleaded guilty to one count of supplying a dangerous drug (between 11 December 2015 and 4 August 2016), and one count of possessing a dangerous drug, on 4 August 2016. In relation to both offences Mr Paterson was fined $800, and no conviction was recorded.

QCAT Review

  1. [20]
    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 exercising its review jurisdiction the Tribunal must decide the review in accordance with the QCAT Act and the Working with Children Act, and exercises all of the functions of the original decision-maker for the decision now under review.[7] Because of s 19(a) of the QCAT Act, the objects[8] of the Working with Children Act must still be upheld. That is a matter that is also reaffirmed by s 360 of the Working with Children Act, 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.
  2. [21]
    Importantly, the hearing required before the Tribunal can include the reception of entirely new evidence, not previously available to the original decision-maker. In Mr Paterson’s case the original decision-maker was unaware that the serious offence initially charged against Mr Paterson had been brought in error, and was not to know that the police would later correct that mistake prior to the eventual court hearing, because this transpired after the date of the original decision.
  3. [22]
    As already indicated, Mr Paterson had ‘new police information’, necessitating a review of his positive notice status, under s 237(1)(b) of the Working with Children Act. Such review must be conducted in accordance with the process outlined in sections 219-231. Of particular relevance is section 221, which provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if-
  1. (a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  1. (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-
  1. (i)
    investigative information;
  1. (ii)
    disciplinary information;
  1. (iii)
    a charge for an offence other than a disqualifying offence;
  1. (iv)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or
  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (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.
  1. [23]
    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.[9]

  1. [24]
    On this review it becomes necessary to consider Mr Paterson’s 2016 offences and the 10 May 2018 court appearance for those offences. When doing that, it is not sufficient to look only at the fact of an entry on Mr Paterson’s Court Record. The necessary examination is similar 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[10] 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.’[11] It is only when that task is undertaken that the Court can properly assess the conduct underlying a conviction, so as to understand how it may impact on the relevant assessment. In this instance the relevant assessment relates to Mr Paterson’s suitability for participation in regulated employment.
  2. [25]
    In the particular context of ascertaining whether there is an exceptional case requiring the issue of a negative notice, the Working with Children 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’.[12]
  3. [26]
    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 –
        1. (i)
          whether it is a conviction or a charge; and
        1. (ii)
          whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
        1. (iii)
          when the offence was committed or is alleged to have been committed; and
        1. (iv)
          the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
        1. (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 Paterson’s offending behaviour and court record

  1. [27]
    Until 10 May 2018 Mr Paterson did not have any criminal history. On that date, when aged 40, Mr Paterson was dealt with by the Magistrates Court at Cleveland, and was convicted on his own confession of two offences under the DMA.
  2. [28]
    All of the surrounding circumstances of the offences and Mr Paterson’s pleas of guilty were taken into account during sentencing and Mr Paterson was then fined $800. The Magistrate also ordered that no conviction was to be recorded.
  3. [29]
    The factual circumstances of Mr Paterson’s offending behaviour have already been described in these reasons for decision, at paragraphs [10]–[13], above. Mr Paterson was prosecuted for two offences under the DMA because he was naïve enough to assume that a compound used in a health supplement that is lawful and publicly available in many overseas jurisdictions would be similarly lawful, in Queensland. Unfortunately for Mr Paterson, that is simply not the case. Although ‘ignorance of the law affords no excuse’, Mr Paterson’s criminality can at least be understood as unintended, and inadvertent, rather than as deliberate, or malevolent. It is criminality in the technical sense, and at the very ‘low end’ of the scale, by a man with a hitherto unblemished record; hence no doubt the manner in which it was dealt by the sentencing Magistrate, at Cleveland.

Mr Paterson’s Evidence

  1. [30]
    Mr Paterson indicates that he is a single man, now aged 41 years. For 18 years Mr Paterson worked as a stevedore at the Port of Brisbane. This is an occupation where, for health and safety reasons, workers are required to undergo regular drug testing. Mr Paterson never failed a drug test.
  2. [31]
    Mr Paterson ceased stevedoring in about 2015, when he accepted a redundancy. In 2016, he enrolled to do a Certificate III in Community Services at TAFE. This is where Mr Paterson first obtained a blue card, because it was necessary for field placement as part of his studies.
  3. [32]
    In 2017, Mr Paterson transferred his enrolment into full-time studies at Griffith University undertaking a Bachelor of Human Services degree. He is performing exceptionally well in that course, and has a very high grade point average. Mr Paterson still requires a blue card, as he must complete approximately a further 140 hours of field placement, before he is eligible to graduate. Many, yet not all, of the field placement opportunities for students in that course are with human services agencies working with children.
  4. [33]
    Outside of his studies Mr Paterson lives a quiet and abstemious life. He spends time with family and a small group of friends and does volunteer work with Orange Sky Laundry, assisting the homeless.
  5. [34]
    Mr Paterson’s health is impacted by a number of chronic musculoskeletal problems caused by road accident injuries and an only partly successful childhood surgery, as well as CMT. These conditions, in particular, have activated an interest by Mr Paterson in alternate therapies, health and nutrition, and gym training, as a means by which to keep the worst effects of these conditions under control. Mr Paterson’s health supplement business arose out of this interest. He informed the Tribunal that the business was only ever a small undertaking, aimed primarily at subsidising his own use of imported health supplements, and that he has no intention of continuing with this business, once he has graduated from university and has obtained paid employment. Mr Paterson also told the Tribunal that, as soon as he became aware that products containing Androsta 3.5-diene-7.17-dione were treated as the same way as DHEA (and were thus illegal), he immediately ceased stocking and supplying these products. Mr Paterson has never supplied health supplements to children.

Witnesses

  1. [35]
    References were received before the Tribunal from Ms Kimberly Newing (the younger sister of Ms Applicant, and the mother of his two nieces) and Mr Shaun Willis, who is a long-term friend. References were also received from Mr Paterson’s adjoining neighbours. Each of these people were aware of Mr Paterson’s recent police matters, yet still remain willing to vouch for Mr Paterson.

Section 226(2) matters

  1. [36]
    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

  1. [37]
    The offences were a conviction based on Mr Paterson’s plea of guilty, yet the order of the Court was that no convictions were to be recorded.

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

  1. [38]
    None of the offences committed by Mr Paterson 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

The offences were committed in 2015 and 2016.

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

  1. [39]
    The nature and circumstances of Mr Paterson’s offending behaviour has already been addressed in these reasons for decision. None of that offending behaviour involved offences against children, or any element of child endangerment. On an objective assessment these offences are of only negligible relevance to any prospective role by Mr Paterson 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.

  1. [40]
    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

  1. [41]
    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

  1. [42]
    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

  1. [43]
    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

  1. [44]
    There are no other factors specifically relating to Mr Paterson’s offending history that are relevant to questions of child safety in the context of regulated employment.
  2. [45]
    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] Border Force is the Commonwealth agency that has now assumed the role previously performed by the Australian Customs Service.

[5] The TGA is the Commonwealth regulatory agency for goods that include medicines and health supplements.

[6] QCAT Act, s 20.

[7] QCAT Act, s 19.

[8] Working with Children Act, s 5.

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

[10] (1957) 97 CLR 279.

[11] Ibid 288.

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

Close

Editorial Notes

  • Published Case Name:

    Kirk James Paterson v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

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

  • MNC:

    [2018] QCAT 359

  • Court:

    QCAT

  • Judge(s):

    Member McLean Williams

  • Date:

    23 Oct 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 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
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. (1957) 97 CLR 279
3 citations
Jump To
Cite 1 - (1957) 97 CLR 279
Cite 2 - (1957) 97 CLR 279
Cite 3 - (1957) 97 CLR 279

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.