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Murray v Director-General, Department of Justice and Attorney-General[2018] QCAT 56

Murray v Director-General, Department of Justice and Attorney-General[2018] QCAT 56

CITATION:

Murray v Director-General, Department of Justice and Attorney-General [2018] QCAT 56

PARTIES:

Michael Patraic Murray

(Applicant)

v

Director-General, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

CML057-17

MATTER TYPE:

Childrens matters

HEARING DATE:

8 November 2017

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

DELIVERED ON:

26 February 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision 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 be set aside, and replaced by the Tribunal’s decision that the Applicant’s case is not an exceptional case.

CATCHWORDS:

Application for review of a decision under the  Working with Children (Risk Management and Screening) Act 2000; whether the Applicant’s case is an ‘exceptional case’

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

Working with Children (Risk Management and Screening) Act 2000, s 5, s 168, s 169, s 174, s 220, s 221, s 257

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

Platt v Director-General Department of Justice and Attorney-General [2018] QCAT 001

APPEARANCES:

 

APPLICANT:

In person

RESPONDENT:

Ian McGowie, Solicitor, for the Respondent

REASONS FOR DECISION

  1. [1]
    On 24 June 2016 an application was made on behalf Mr Michael Patraic Murray under the Working with Children (Risk Management and Screening) Act 2000 (‘Working with Children Act’), for Mr Murray to be issued with a Blue Card.  At that time Mr Murray was doing volunteer work with Sailability Gold Coast Inc., an organisation that provides sailing opportunities for children with disabilities.  In order to do that more fully, Mr Murray requires a blue card. 
  2. [2]
    Mr Murray is a former crystal methamphetamine (‘Ice’) addict.  In March 2015, and entirely of his own volition, Mr Murray enrolled in a twelve-month residential recovery program at the Fairhaven Rehabilitation Centre, conducted by the Salvation Army.  Mr Murray successfully completed that program, yet chose to stay on at Fairhaven for a further period, as a ‘living in’ volunteer.  This was done by Mr Murray in an effort to repay the Salvation Army for the debt of gratitude that he felt for their help in overcoming his Ice addiction. 
  3. [3]
    Through Fairhaven, Mr Murray was introduced to the Australian Anti-Ice Campaign (‘AAIC’).  The AAIC is a registered charity based on the Gold Coast, one that seeks to provide education and support services in the community in response to the growing Ice problem.  Mr Murray currently works as a volunteer administrator at AAIC, for anything up to 4 days per week, yet would like to move into the anti-Ice education program conducted by the AAIC in schools.  The AAIC are of the view that Mr Murray’s ability to “tell his own story” makes him eminently qualified to deliver that message to a school-aged audience.  For that work Mr Murray also requires a blue card. 
  4. [4]
    As part of the blue card application process, Blue Card Services undertake routine criminal history checks. These enquiries revealed that Mr Murray has a number of prior criminal convictions, most of which attach to events occurring in 2014, during the bleakest epoch of his Ice addiction. 
  5. [5]
    Because of Mr Murray’s criminal history, Blue Card Services wrote to him, on 22 September 2016, and said:

Thank you for your application for a blue card to engage in regulated child-related activities.

In undertaking the Working with Children Check, information has been received which has raised concerns with your eligibility to hold a blue card.

Before deciding your application I am providing you with an opportunity to respond to this information. You can do this by outlining your version of events and providing any additional information about why you think you are eligible for a blue card. You may also provide references in support of your application.

  1. [6]
    On 11 October 2016, Mr Murray provided Blue Card Services with detailed written submissions in relation to his offending behaviour, along with a number of highly favourable personal references, and other supporting documents.  None of this information was in any way persuasive before Blue Card Services.
  2. [7]
    On 30 January 2017 the Director of the Screening Service Unit of Blue Card Services, Ms Michelle Miller, wrote to Mr Murray and said:

I refer to your application for a positive notice and blue card for child-related employment. On 22 September 2016 I sent a letter to you which included a copy of your police information and invited you to make submissions to me about your police information and why I should not issue a negative notice to you.

My decision

I received and considered the submissions you provided.

I have now assessed your eligibility to hold a blue card as required by the Working with Children (Risk Management and Screening) Act 2000 (the Act). As a result of my assessment I have decided to issue you with a negative notice. The reasons for my decision accompany this letter (Attachment A). A negative notice remains valid unless it is cancelled.

I have advised Sailability Gold Coast Inc. and the Australian Anti-Ice Campaign that you have been issued with a negative notice.

  1. [8]
    Ms Miller’s decision has the consequence that Mr Murray was deemed ineligible for a blue card, and thus becomes ineligible to work with children. 
  2. [9]
    On 1 March 2017 Mr Murray commenced an application before QCAT to review the decision made by Michelle Miller. The review was ultimately heard before me, at Brisbane, on 8 November 2017.
  3. [10]
    Having now considered all of the material originally submitted by Mr Murray to Blue Card Services, I am of the view that his case should not have been categorised as exceptional at the time when Ms Miller made her decision. Since that time Mr Murray has submitted still further material, this time in support of his QCAT Application to Review Ms Miller’s original decision. The fresh material, not qualitatively different from that originally submitted, only serves to galvanise my opinion that Mr Murray’s case is not an exceptional one.

Legal Framework

  1. [11]
    As was noted by Carmody J in RPG v Public Safety Business Agency,[1] and as was referred to by me recently in Platt v Director-General Department of Justice and Attorney-General,[2] the blue card regime aims to ensure child safety by allowing only eligible adults to either work with, or care for, other people’s children: what is termed to be ‘regulated employment’.
  2. [12]
    The blue card system 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, and will not be issued with a blue card, by issuing either a ‘positive’ or ‘negative’ notice.[3]
  3. [13]
    Those who obtain a positive notice may obtain a blue card, and may then work with children.  Those who are given a negative notice may not apply for, or start, or continue in, regulated employment.[4]  In the ordinary course, a positive notice must be issued to a person if the chief executive is not aware of any police or disciplinary information about the person, or a conviction of the person for any offence.[5]
  4. [14]
    As indicated at the commencement of these reasons, Mr Murray is a person with criminal convictions, albeit not for offences amounting to what are termed by the Working with Children Act to be ‘disqualifying offences’.[6]  As such, Mr Murray becomes a person subject to the operation of s.221(1)(c), and s.221(2) of the Working with Children Act.  Thereunder, a positive notice may be issued, albeit not without further consideration and deliberation. 
  5. [15]
    Section 221 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-

(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

  1. (b)
    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.

[emphasis included]

  1. [16]
    The term ‘exceptional case’, as used in s. 221(2), is left undefined by the Working with Children Act.  Accordingly, what may amount to an exceptional case becomes a question of fact and degree, to be decided in each case, on its own facts, yet having regard to:[7]

…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. 

  1. [17]
    Section 226 of the Working with Children Act requires that certain matters be taken into consideration when deciding whether or not there is an exceptional case.  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
      2. (ii)
        whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      3. (iii)
        when the offence was committed or is alleged to have been committed; and
      4. (iv)
        the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      5. (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;
      1. Any information about the person given to the chief executive under section 318 or 319;
      2. Any report about the person’s mental health given to the chief executive under section 335;
      3. Any information about the person given to the chief executive under section 337 or 338;
      4. 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.
  2. [18]
    In reasons for decision dated 30 January 2017 Ms Miller determined that Mr Murray’s application to be an exceptional case, such that Mr Murray was issued with a negative notice.  It is this decision which is now subject to review before the Tribunal. 
  3. [19]
    Now, before QCAT, the purpose of the review is for the Tribunal to produce what the QCAT Act terms as the ‘correct and preferable’ decision, after a fresh hearing, on the merits.[8]  In so doing, the objects[9] of the Working with Children Act must be upheld.  That fact 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.
  4. [20]
    In this review it again becomes necessary to consider the circumstances and context of Mr Murray’s offending behaviour, and to consider, in particular, the matters set out in s.226 of the Working with Children Act.  Section 226 is not an exhaustive list of considerations and does “not expressly or impliedly confine the [Tribunal] to considering only matters specified therein”. Rather, the matters set out in s.226 are “merely certain particular matters which the [Tribunal] is obliged to consider in deciding the application”.[10]

Mr Murray’s offending behaviour

  1. [21]
    All offending behaviour has context.  Not only the fact of any conviction, but also the circumstances in which the conviction has arisen needs to be considered.  That approach is made clear enough for blue card decision-makers by the language used in the Working with Children Act, particularly that in ss.221(1)(b)(i); 221(1)(b)(iii); and that as found in s.226(2)(a).
  2. [22]
    Mr Murray gave evidence before the Tribunal regarding his offending behaviour in an honest and forthright manner.  I accept his evidence in its entirety. As was the case in Platt,[11] none of Mr Murray’s evidence was contradicted by any contrary evidence adduced by the Respondent.  Nothing said before the Tribunal by Mr Murray needs to be viewed with any degree of cynicism created by juxtaposition of the things said by Mr Murray against what has been previously recorded in his criminal history.
  3. [23]
    Mr Murray, now aged 40, was born and raised on the Gold Coast as the youngest of two brothers, in an ordinary family.  Mr Murray attended only one primary school, and one high school for the entirety of his education. Mr Murray reports that his was a happy childhood, although he says that he did experience some initial bullying in the early years of high school.  Mr Murray was actively involved in extra-curricular activities at school, particularly drama and the performing arts.
  4. [24]
    Mr Murray left school after completing grade 12, in 1994.  Mr Murray then went to live and work in Sydney for a period.  He says that he was the victim of a sexual offence whilst in Sydney, and this was one of the key factors behind his returning to live with family, on the Gold Coast.  Mr Murray then started work with his father.
  5. [25]
    In the very late 1990s, for about two years, Mr Murray said that he was a recreational drug user.  In 1999, when aged 22, Mr Murray says that he a friend were caught by the police smoking marijuana, and this resulting in his being charged with possession of drug utensils. On 30 September 1999 Mr Murray was convicted on that charge in the Magistrates Court at Southport, and was fined $300.  Thereafter Mr Murray says that he abstained from all illicit drugs. In the early 2000s, Mr Murray went to TAFE and commenced a Certificate IV in information technology, which he completed. Mr Murray then transferred to Griffith University on the Gold Coast and commenced an information technology degree, part-time.
  6. [26]
    Throughout his university years Mr Murray supported himself by means of part-time work as a ride attendant at various theme parks on the Gold Coast. By all accounts Mr Murray must have been well-regarded, as he progressed his way through a number of promotions: from ride attendant to ride supervisor, then human resources information technology officer, and then to personal assistant to the human resources manager.
  7. [27]
    In 2006, Mr Murray was involved in a fatal motor vehicle accident after which he says that his life altered, very dramatically. In the early hours of 19 November 2006 Mr Murray was driving on the Gold Coast when his vehicle struck and killed a pedestrian, whom he had not seen on the carriageway. In consequence of that accident, Mr Murray was charged with the offence of dangerous operation of motor vehicle, causing death.
  8. [28]
    The case initially went to trial on the Gold Coast, yet resulted in a mistrial, on two successive occasions, each in consequence of media reporting during the trial. The matter was ultimately transferred to the District Court at Brisbane, for retrial.  Finally, on 9 December 2008, Mr Murray was found by a Brisbane jury to be not guilty, and acquitted.
  9. [29]
    As can be well-imagined, Mr Muray reports that this fatal accident and its prolonged legal aftermath had a significant deleterious impact on him.  Shortly after his acquittal Mr Murray was diagnosed with post-traumatic stress disorder (PTSD), chronic depression, anxiety disorder, and agoraphobia.  Mr Murray says that he took him fully five years to overcome the worst effects of this incident, with the assistance of psychological counselling.
  10. [30]
    Although eventually able to resume full-time employment (within about 12 months after the third trial), this time as an information technology officer working in a telemarketing company, Mr Murray says that he remained reclusive whilst he continued with his struggle with his emotional and mental health.
  11. [31]
    Finally, in 2013, and after a number of years single, Mr Murray entered into a relationship. Unfortunately, this relationship proved to be an unhealthy one, and Mr Murray experienced both emotional and physical abuse at the hands of his same-sex partner. Mr Murray’s partner at that time was also a drug user, whom introduced Mr Murray to Ice and other drugs.  Mr Murray ended that relationship after approximately 18 months, in August 2014.  However, as one legacy of it, Mr Murray was, by now, also addicted to the drug Ice.
  12. [32]
    During 2014 Mr Murray struggled with a number of other issues. In that year he was involved in another motor vehicle accident; his mother had significant surgery; and his family dog of some fifteen years also passed away. Mr Murray was also confronted at work by the best friend of the deceased pedestrian from the fatal car accident in 2006.  That chance meeting left Mr Murray badly shaken. In early February 2014 Mr Murray also discovered that his father, had stage 4 terminal cancer. Mr Murray’s father then passed away in September 2014.  By this stage Mr Muray reports that he was a regular Ice user, and had become dependent on Ice in order to function.  Mr Murray says that the drug became a crutch to which he would turn, in order to cope with these events. By the end of 2014 Mr Murray’s Ice use had become so prolific that he had become an unreliable employee, such that he was terminated by his employer.  Mr Murray was, by now, also living on the streets.
  13. [33]
    In January 2015 Mr Murray came to the realisation that he required external assistance to deal with his drug problem. In February Mr Murray approached and was accepted into the Salvation Army Fairhaven recovery program.  Mr Murray commenced at Fairhaven on a living-in basis on 13 March 2015.
  14. [34]
    The Fairhaven recovery program is a 12-step rehabilitation program throughout which participants are required to work intensively with caseworkers and psychologists. Whilst resident at Fairhaven Mr Murray was also required to regularly demonstrate that he remained abstinent from all drugs by means of regular urinalysis. At this stage Mr Murray also resolved to have all the outstanding criminal charges - those that had arisen during 2014 whilst he was living on the streets - dealt with by the Courts. These offences are dealt with by me in paragraphs [39] and [40], below.
  15. [35]
    Mr Murray completed the Fairhaven program in March 2016.  Yet, he stayed on at Fairhaven as a live-in volunteer until 18 May 2016.  During the late stages of Mr Murray’s time at Fairhaven the Australian Anti-Ice Campaign (‘AAIC’) approached the Salvation Army looking for recovered addicts whom had been clean from Ice for over twelve months, who might be able to assist AAIC with their education programs and community forums.  Mr Murray was put forward to AAIC by Fairhaven as a suitable candidate.
  16. [36]
    Since leaving Fairhaven, Mr Murray has worked at AAIC as a volunteer. As part of that volunteer work he is still subject to regular random drug and alcohol testing, by means of urinalysis.  Outside of his volunteer work at AAIC, Mr Murray is a regular churchgoer, attending the Catholic Church at Southport, and he also attends meetings of Narcotics Anonymous.
  17. [37]
    Mr Murray has also remained in regular connection with Fairhaven and the Salvation Army recovery services, and he provides volunteer assistance working with recovering addicts in their detox unit on the Gold Coast. Mr Murray also volunteers with Sailability Gold Coast Inc, a charity that provides access to recreational sailing on behalf of children with disabilities.  Mr Murray rounds out any spare time with regular exercise at a gymnasium.
  18. [38]
    In the event that Mr Murray obtains a blue card, his aim is to move into fulltime paid employment with AAIC, conducting in-school workshops to high school aged youth in relation to the dangers of drug use.  He intends to undertake further studies in order to become a drug and alcohol counsellor.

Mr Murray’s criminal history

  1. [39]
    Michael Murray’s criminal history reveals the following offences:
    • On 30 September 1997 (when aged 20), Mr Murray was convicted of a breach of bail, and fined $250.00. This appears to be in relation to a non-appearance before the Southport Magistrates Court for a street offence.
    • On 21 June 1999 (when aged 22), Mr Murray was fine $300.00 by the Southport Magistrates Court for possessing drug utensils. No conviction was recorded. This was in relation to the offence described in paragraph [25] of these reasons for decision.
    • On 30 November 2007 (when aged 32), Mr Murray appeared before the Southport Magistrates Court for having committed a public nuisance offence on 29 November 2007. Mr Murray says he was apprehended by the police for having urinated in a garden bed, after a night out. No conviction was recorded, and bail was forfeited.
    • On 9 December 2008 Mr Murray was acquitted by the District Court at Brisbane on a charge pursuant to section 328A of the Criminal Code: Dangerous Operation of a Vehicle (causing death). This is the offence that has previously been described in paragraphs [27] and [28], of these reasons for decision.
    • On 4 November 2014, Mr Murray appeared before the Southport Magistrates Court for having breached bail conditions imposed on him on 20 October 2014. Mr Murray was admonished, yet not further punished, and no conviction was recorded. No other details are revealed by the criminal history in relation to that offence, yet Mr Murray told the Tribunal that by late 2014 he was living on the streets and had become a regular user of the drug Ice.
  2. [40]
    The only other entry in Mr Murray’s criminal history relates to his appearance before the Southport Magistrates Court on 15 September 2015. At that time, Mr Murray was undergoing drug rehabilitation treatment at Fairhaven.  As part of that Mr Murray had also resolved to have all of his outstanding offences that had arisen during his time living on the streets in 2014 dealt with, by the Courts. On 15 September 2015, eleven offences were dealt with by the Court, to each of which Mr Murray pleaded guilty. The offences dealt with by the Southport Magistrates Court on that date were:

Offence Date

Offence

13 December 2014

Possessing dangerous drugs

13 December 2014

Possess drug utensils that had been used

7 November 2014

Failure to properly dispose of a needle and syringe

3 September 2014

Failure to appear in accordance with own undertaking

3 July 2014

Possess drug utensils that had been used

3 July 2014

Possessing dangerous drugs

25 June 2014

Possessing drug utensils for use

25 June 2014

Possessing drug utensils for use

25 June 2014

Possessing dangerous drugs

25 April 2014

Possessing drug utensils that had been used

25 April 2014

Observations or recordings in breach of Privacy (Criminal Code s.227A(1))

  1. [41]
    Although each of the offences that pre-date 2014 do require at least some consideration, because of s.226(2) of the Working with Children Act, section 226(2)(a)(iv) specifies that it is the nature of these offences and their relevance to employment, or carrying on a business, that involves or may involve children that must be considered.  I do not consider these offences to have much relevance to that inquiry.  Although it be further true that section 226 permits a “piercing of the veil” of innocence that attaches to Mr Murray because of his acquittal in 2008 on the charge of dangerous operation of a vehicle causing death, the particulars of the alleged offence still need to be considered in the specific context of risk to children.
  2. [42]
    In my view there is nothing about the nature of any of the pre-2014 offences that raises even the remotest spectre of risk to children in the context of Mr Murray now being assessed for a blue card.
  3. [43]
    I have also read and carefully considered the sentencing remarks of his Honour Magistrate Magee, who was the sentencing Magistrate on 15 September 2015, when Mr Murray was dealt with for the eleven offences occurring in 2014 now listed in paragraph [40], above. All of these arose in the context of Mr Murray’s Ice addiction. In relation to these eleven offences a conviction was recorded and Mr Murray was sentenced to 12 months probation. Mr Murray has successfully completed that probation period.  In his sentencing remarks Magistrate Magee particularly noted that Mr Murray did not have an extensive prior criminal history and that he had only one prior conviction (in 1999) for a drug matter.
  4. [44]
    One of these offences dealt with by the court on 15 September 2015 does warrant further elaboration by me. That offence is the breach of privacy offence that occurred on Anzac Day, 2014. On the date in question Mr Murray was high on Ice and approached an adult male person, in a public change rooms at the beach and attempted to engage in conversation with that person, who was in the process of using the shower. Mr Murray says that the man was known to him, and that he was trying to encourage him to become involved in the modelling industry. However, the particulars of the police complaint revealed that Mr Murray attempted to peer over the top of the locked shower cubical, and well as under the shower door when conversing with him. That is clearly socially inappropriate behaviour, no doubt arising because of Mr Murray’s impaired judgement at the time.  The police particulars for that offence reveal that Mr Murray was lying on the ground incoherent and shaking when apprehended by them very shortly after the offence, and that he was found to be in possession of a used drug syringe.
  5. [45]
    During the hearing before the Tribunal on 8 November 2017 Mr Murray acknowledged that his behaviour on Anzac Day 2014 to have been entirely inappropriate.  Mr Murray also acknowledged that he was drug impaired at the time. I accept Mr Murray’s contrition and am prepared to conclude that this was aberrational behaviour, entirely caused by the drugs.  In my view, this event does not give rise to any specific risk should Mr Murray now be allowed to obtain a blue card.

Witnesses

  1. [46]
    Evidence or statements were received before the Tribunal from the following persons:
    • Ms Andrea Simmons, chief executive officer of Australian Anti-Ice Campaign
    • Mrs Juliet Douglas, Salvation Army
    • Mr Justin Murray (brother of the Applicant)
    • Ms Verina Blagrove
    • Dr Elsa Herbst, clinical psychologist
    • Ms Leanne Hardaker, management team Salvation Army Recovery Services
    • Mr Peter Carswell
    • Ms Emma Crone
    • Ms Danielle O'Dwyer
    • Mr George Patriki, clinical director, Australian Anti-Ice Campaign
    • Ms Tania Kalkilis, clinical psychologist.
  2. [47]
    I do not here propose to traverse all of the evidence given by each of these people before the Tribunal.  Suffice to say that nearly all of them were aware of Mr Murray’s past drug addiction and were able to testify to the redemption that he has since undergone.  Those with experience in dealing with drug dependence and the treatment of addicts in recovery were very firm in stating that Mr Murray had made a remarkable and significant turnaround in his life, such that the risk of his returning to drug use was improbable. In their views, Michael Murray had undergone a complete rehabilitation and was a suitable candidate for a blue card.  I accept all of that evidence.  There was nothing from the Department to contradict any of it. 

Section 226(2) matters

  1. [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:

Whether the offence is a conviction or a charge

All of the offences on Mr Murray’s criminal history, other than the dangerous operation of a motor vehicle offence, resulted in a conviction.

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

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

When the offence was committed or is alleged to have been committed

The offences were committed between 1997 and 2014. Significantly however there are lengthy periods of no criminal conduct and the vast majority of Mr Murray’s offending behaviour relates to one narrow period in 2014 when Mr Murray was drug addicted. Mr Murray is now drug abstinent, and has been so for nearly three years.

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

The nature of Mr Murray’s offending behaviour has already been discussed by me in these reasons for decision.  In my assessment the nature of that offending behaviour is of negligible relevance to any prospective employment by Mr Murray as part of any business that involves, or many involve, children.

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.

No additional information has been placed before the Tribunal

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

No information has been placed before the Tribunal

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

No information has been placed before the Tribunal.

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

No information has been placed before the Tribunal.

Anything else relating to the commission, or alleged commission, of the offence that is reasonably considered to be relevant

In reasons for decision dated 30 January 2007 when deciding that an exceptional case existed, Ms Miller observed, in part:

The material before me indicates the applicant engaged in illicit drug use as early as 1999 and his drug related activities have continued until recently as December 2014. By his own admissions the applicant was a drug addict, the material before me demonstrates recent, frequent and extensive drug related activities. Drug use and drug related activities will be likely to detract from his ability to provide a protective environment for children placed in his care, and his ability to present as an appropriate role model for them.

In my view Ms Miller’s comments fail to accurately reflect the sentencing remarks made by Magistrate Magee on 15 September 2015, and do not sufficiently contextualise Mr Murray’s offending behaviour.  Nor in my view do those comments attach sufficient weight to Mr Murray having successfully completed the Fairhaven drug recovery program, and his no longer being a drug user. 

  1. [49]
    On the material that is available before the Tribunal, Mr Murray would only present a risk to children if still using illicit drugs.  Yet it appears improbable that Mr Murray would now return to a life of drug addiction.
  2. [50]
    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 set aside and is replaced by the Tribunal’s decision that there is no exceptional case.

Footnotes

[1][2016] QCAT 331, at [18] – [19].

[2][2018] QCAT 001.

[3]Working with Children Act, s. 220.

[4]Working with Children Act, s. 257.

[5]Working with Children Act, s. 221.

[6]‘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.

[7]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at 31.  q

[8]QCAT Act, s.20.

[9]Working with Children Act, s.5

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

[11]Supra, note 2.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2018] QCAT 56

  • Court:

    QCAT

  • Judge(s):

    Member McLean Williams

  • Date:

    26 Feb 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
1 citation
Jump To
Cite 1 - [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
Platt v Director-General, Department of Justice and Attorney-General [2018] QCAT 1
2 citations
Jump To
Cite 1 - [2018] QCAT 1
Cite 2 - [2018] QCAT 1
RPG v Public Safety Business Agency [2016] QCAT 331
1 citation
Jump To
Cite 1 - [2016] QCAT 331

Cases Citing

Case NameFull CitationFrequency
END v Director General, Department of Justice and Attorney General [2020] QCAT 295 citations
NTT v Director-General, Department of Justice and Attorney-General [2023] QCAT 1203 citations
1

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