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MIH v Director-General, Department of Justice and Attorney-General QCAT 157
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
MIH v Director-General, Department of Justice and Attorney-General  QCAT 157
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
7 June 2019
26 February 2019
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – review of negative notice – review of a decision to issue a negative notice and cancel a Blue Card – where applicant has a criminal history without any serious or disqualifying offences – where the applicant was charged with murder but granted an indemnity against prosecution in exchange for giving evidence against her co-accused – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Non-publication Order – where the tribunal prohibits the publication of the names of the applicant and any witnesses appearing at the application – where to publish would endanger the mental health of a person – where to publish would disclose confidential information – where to publish would be contrary to the public interest
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226, s 353
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
RPG v Chief Executive Officer, Public Safety Business Agency  QCAT 331
APPEARANCES & REPRESENTATION:
C Borger, legal counsel of the Director-General, Department of Justice and Attorney-General
REASONS FOR DECISION
- On 10 June 2016, Blue Card Services (‘BCS’) issued a positive notice to the applicant, based on the disclosed ‘fact’ that she had ‘no police information’.
- On 17 May 2018, Queensland Police Service (‘QPS’) notified BCS that the applicant was known by different names, with different disclosed dates of birth and that she did have a criminal history. QPS also provided BCS with historical police information as well as advising that the applicant was subject to an outstanding charge. Based on this new, undisclosed, information BCS reassessed the applicant’s eligibility to hold a blue card. The disclosed information included a notation that the applicant had been charged with the offence of murder in July 1991. The charge of murder was discontinued against the applicant when the applicant was granted an indemnity. She was never indicted for murder, based on her commitment to give evidence against her two co-accused. The disclosed information also included a notation that the applicant had an unresolved charge before a Magistrates Court for providing ‘false and misleading information to the Chief Executive’.
- On 24 May 2018, the Queensland Office of the Director of Public Prosecutions provided BCS with the following relevant information in relation to the outcome of the 1991 murder charge against the applicant (who was referred to as the defendant):
On 11 November 1991 the defendant was granted indemnity from prosecution for the offences of murder and accessory after the fact if she fulfilled the condition on which the indemnity was granted, namely, to give evidence against the two other defendants in the matter. The Attorney-General, on the advice of the Crown, granted the indemnity because if the defendant was to be tried with the other two defendants, then her statements would be evidence against her only. The Crown determined that her evidence against the other two defendants was necessary for the jury to determine what part, if any, the other two defendants played in the killing.
- The applicant was witness to, and assisted with, her (then) husband [W] and an acquaintance [T] in murdering a man in her house. Namely, the applicant was alleged to have stood by and done nothing to assist the man or prevent further injury to him while he was bashed, kicked, stabbed and cut by [W] and [T]. Further, it was alleged that over a number of hours the applicant allegedly assisted to clean up after the murder, bundling up the body and assisted to carry it from the house, across the street and hid it in a garden bed. The applicant told police that [W] and [T] repeatedly stabbed and beat the man in the chest and back while she was made to sit and watch. She said she assisted the pair to mop up the blood using newspaper. As part of this alleged offence, the applicant dragged the victim's body through the bedroom of one of her young children. The applicant gave evidence to the tribunal that she accepted the truth of the allegations, save for the suggestion that she dragged to the body of the victim through the bedroom of one of her young children. The applicant also told the tribunal that to her knowledge her young children did not witness, or hear, the events. During the evening, at the first opportunity to do so, the applicant fled the house (leaving her sleeping children behind) as she feared she would also be killed by [W].
- The victim of the murder was K, who was living at supported accommodation through the Salvation Army and who had been invited back to the residence of W and the applicant at the request of W. By this stage W had befriended T. The applicant thought T was a nice person. During the afternoon W, T and K had been drinking cask wine. By dark, the applicant had tended to the children and put them to bed. W, T and K talked about a depressing topic and the applicant asked K to change the subject. It was too late. W moved swiftly and brutally, with the support of T. During the murder episode the applicant sat at the kitchen table and viewed the events. She did not go to her children. She assisted W and T to clean the kitchen and to wrap the body in a carpet in the lounge. According to one report, the body was taken and left in a bedroom with the children for a while. Later, W, T and the applicant took the body over the road and placed it in a garden.
The applicant’s evidence
- The applicant gave evidence to the tribunal that she was ‘married a couple of times’ and that the aliases discovered by BCS were her married names. The applicant proffered no reasonable explanation as to her ‘oversight’ in failing to disclose the aliases to BCS in her original application.
- Through the Department of Child Safety, the applicant had care of her grandchildren and she gave evidence to the tribunal that she needed a blue card to be considered by the Department for reappointment as their carer. The applicant is a trained nurse. At the date of hearing, the three grandchildren in her care were aged 13, 8 and 7 years. The children were taken from her when the applicant lost her blue card and they are now with foster carers.
- The applicant gave evidence as to her background. She had a normal infancy and childhood. She rebelled at an early age and fell pregnant at the age of 16 years and at that same age, she married the father who was 32 years of age at the time. The marriage was short lived, and the applicant’s parents helped her to nullify the marriage. The applicant gave evidence that her first husband was involved in the production of drugs. The applicant said that she has had no ongoing contact with him. Whilst pregnant with her first child and after separation from her first husband, she quickly formed a relationship with another man (‘L’). That man fathered the applicant’s next three children. The applicant grew apart from her second husband and she met W (one of the co-accused in the murder charge), whom she married. Disclosed material from the Department of Child Safety provides some insight into the relationship between L and W. One of the children suggests that W was violent towards L and ‘moved him out of the house’. The material also indicated that W threatened to kill one of the applicant’s children in 1990. The applicant said that W warned her that ‘If you don’t get the kid out of the house, I will kill him’. During cross-examination, the applicant dismissed these concerns as if they were unimportant. However, with the introduction of W into the applicant’s life, it was clear that two of the four children could not stay in the household. One went to live with the applicant’s mother, and one went to live with L. The youngest two stayed in the household with the applicant and W. The applicant seemed unconcerned that siblings were split as a result of the demands by W. The applicant gave evidence that W was abusive towards her but said that when he was abusive ‘the two young ones were not there’. In order to cope, the applicant resorted to the use of self-medication through alcohol consumption and she used medication, including prescription medication. She said that W had a drug history, primarily through the use of heroin before they were together, but not while they were together. W however would drink around the children. By way of concession, the applicant said that when not taking pills ‘he was really good with the kids’. W hurt the applicant, and she left and went to the police. She sought assistance through a church, and she said that nuns ‘took me in’. The applicant showed very poor judgement in returning to live with W, because ‘he begged’ (her to do so). The applicant showed little insight into the effect of this decision on the children. It was not long after this reconciliation that the murder occurred.
- During the tribunal hearing, when asked about the failure to move to her children after the murder, as a protective measure, the applicant said she was scared for her own life and she thought there was nothing she could do to further protect the children. It was only when W started to become weary and start to sleep (in the lounge) that the applicant made the decision to leave the house (and her children) and to run out the back door and alert neighbours and the police. When she contacted the police, by coincidence a police officer who had assisted her when she and W lived in Cooktown, and who was aware of W’s propensity to violence, enquired of her as to ‘what has he done this time’. On a previous occasion, that police officer had attempted to counsel the applicant and had attempted to dissuade her from returning to take up residence with W.
- When asked as to support that the applicant has received by way of counselling and professional help, the applicant did say that she saw a psychiatrist in Townsville, who diagnosed her with post-traumatic stress disorder. The applicant said that the consulting psychiatrist did not assist her.
- The applicant does have a drug-related history which includes multiple offending in relation to the production and possession of dangerous drugs and utensils. She gave evidence to the tribunal that she had grown cannabis plants. She consumed marijuana by way of self-medication. Doctors have prescribed her with Valium, but the applicant said that she did not like the effects of that drug. She did say that she would smoke the illicit drug after her boys had gone to bed and she did so away from home and out of view of the children. The applicant did not seek counselling to assist her in dealing with her issues. During the tribunal hearing, the applicant said that she does not have a favourable view of the use of the illicit drugs now. She now smokes cigarettes rather than consume illicit substances.
- In giving evidence to the tribunal, the applicant was very slow and disorganised. The applicant showed little insight into the concerns of BCS. The applicant categorised decision-makers as unreasonable in that (paraphrasing the evidence of the applicant):
They see me as a horrible person who would hurt a child. Things happened a long time ago. People hurt children, but not me! The decision was a shock. I am not a risk to children because of my offending behaviour. It is not in me to hurt children.
- The applicant offered no excuse for misinforming BCS in her original application, other than to say she had no ‘lying intent’. Initially, she indicated that she did not read the application, at least in relation to that part that deals with her name and whether she had previous charges. Dismissively, she attributed her oversight, in part, to her age saying, ‘The older I am getting the worse I am becoming. I should have been more careful’. But she soon contradicted herself, when challenged about misleading authorities relating to her criminal history and alleged involvement in the murder, by saying that ‘I don’t see why they need to know’. Later, she said that her oversight was because she completed the paperwork quickly, saying ‘I was rushed, and I had to meet a deadline’. She went on to say that she did not mention anything about the murder ‘because it was a long time ago’. When asked whether she now understood that the criminal history is relevant to these proceedings, the applicant responded by saying:
Yes and no. I have never hurt a child. My grandchildren love me, and I would never hurt them, or children like them. I messed up the form, but I did not have any grand scheme. I was not trying to deceive. I just didn’t think.
- In support of her application, the applicant introduced written evidence by an accredited mental health social worker. The social worker was not available at the tribunal hearing for cross examination purposes, so the tribunal was not able to place great weight on the content of the written material. The social worker did speak of the therapy that she had provided to the applicant and spoke of the post-traumatic stress disorder as result of witnessing the murder and fearing for her own life from which she still suffers. The social worker proffered an opinion that she has no direct evidence that shows reasonable suspicion regarding (the applicant) being a risk to children and young people and the applicant has clear insight into her offences. The social worker said that she does not feel there are any risk factors or triggers that could contribute to the applicant returning to her use of illicit drug. Finally, the social worker said that in her opinion, children or young people would not be put at risk by the applicant having a card. In that regard, the social worker made no comments in relation to issues around the transferability of use of a blue card, or any other issues around how the ongoing post-traumatic stress may have a bearing on the applicant’s judgement and ability to care for children. It appears that the applicant has minimised her involvement in the murder given that the social worker categorised her as a mere witness rather than as an involved party.
- The applicant did call a witness who spoke positively of the applicant’s interaction with children, including her own. She has no difficulty with the applicant interacting with her own children. In her written material, the witness said:
I have known (the applicant) for 12 years and during that time have known her through working together for 3 years and becoming friends. In the past 12 years of knowing (the applicant) I have found her to be a trustworthy, reliable person who would do anything to help her family and friends in any way she can. Over the years (the applicant) has interacted with my four children from the time my eldest son was a baby. Also, in this time, I have seen (the applicant) with her grandchildren who are always happy and well dressed. I have never had a problem with leaving any of my children with (the applicant) to care for.
- In support of her application, the applicant also obtained evidence from a colleague, and the school principal, and a family friend:
- (a)The colleague said the applicant was an honest and upstanding person, who was reliable in her work and kind in her demeanour.
- (b)The principal said that both children in the applicant’s care present daily with hygiene and care needs met. The principal said that the applicant supports the children through daily drop offs and pickups on time. She attends all meetings. Both children have improved since (the applicant) has been the main carer.
- (c)The family friend said that she has known the applicant for 11 years and that the applicant has always conducted herself in a very professional and responsible fashion, She is reliable, trustworthy and above all a very genuine and caring person. She holds children's welfare in very high regard. She is a very honest and respectful person and has always dealt with any adverse situation with great poise, calm and grace which is the foundation of her strength to always do anything to her best capacity.
- The applicant unsuccessfully applied to the respondent for a Blue Card. The applicant requests this tribunal review the decision made by the respondent.
- In rejecting the application, the respondent identified the applicant’s criminal history, and the murder incident as the primary reasons for its decision. In issuing the negative notice, the respondent acknowledged that no conviction was categorised as a ‘serious offence’ as defined in the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). The drug history relates to a period of approximately four years during 1994 to 1998.
- In her application, the applicant said:
I respect their concern and appreciate the level of protection that they hold towards keeping children and youth safe, however, there are certain reports/ remarks that have been made against me in the response to my application that, with the further evidence and reassessment would be deemed to be incorrect.
For the past three years, I have embraced my new lifestyle. I am supporting my son, committed to my now 2nd year full time study in Paramedic Science, and am continuing in my part-time employment.
I continue to seek opportunities to make life better, not just for myself, but also for the people and the community around me. It is with this, that I request the opportunity of being able to prove this statement and provide the necessary information that is required to reassess and reverse the decision that has been made on my blue card application.
- In her application, the applicant refers to some strategies to assist her in caring for children. She said:
I ended up being stuck in a relationship I then thought I could not get out of and realised I had become a victim of physical abuse from this man. My sons were always my priority and I protected them with my life. It is easy for someone to say just leave. However, you cannot, you get to the point where your family and friends give up on you and you are isolated. So, you stay, and you suffer, and you lose confidence in yourself but one thing that does not change is the love you have for your children. Then your instincts kick in to survival mode.
As you know I was also charged with that murder because I did not by stop it from happening. So, I was indemnified from prosecution and never got indicted for something I did not do in the first place and will take to my grave that I did not kill anyone.
So, you have asked me what I have done over the years to address my offending behaviour. There was no offending behaviour, I was charged with something I did not do.
As a survivor of domestic violence, I swore I would never put my children and myself in any situation again which I didn't and haven't. I cannot change what had happened that night. However, I like to think that I helped change the future with my small contribution to help women and men to come forward and say help me I am a victim of a perpetrator.
So, in the last 27 years apart from raising strong children, I was a part of the women's forum in (location withheld) in 1990s to get the laws changed from domestic violence to be known as criminal domestic violence. I was invited to be interviewed by Derryn Hinch and appear on The Mike Walsh show to speak out about domestic violence and the impact it has on families and how to get help for yourself.
I have also volunteered my services through various charities e.g.: Salvation Army, Soup Kitchens, court support for women who felt they could not go through the court process alone, helped out at schools when my children were growing.
Since the murder took place all those 27 years ago, I mentally dealt with it and had it put to the far reaches of my mind. Until it was bought up on the 18 May 2018, I had not thought about it for years. My life along with my children moved forward. I have been blessed with my grandchildren over the last 18 years have been an active grandparent in their lives as well as their friends.
They all have stayed with me for period of times over the years.
I take being a kinship carer to 3 of my grandchildren very seriously. I was the only family member who was willing and able to step up and take on this role as they needed to be with family who loved them and not just a statistic placed in a foster care home with strangers. They know and feel safe and love me nearly as much as I love them.
- The decision under review is whether the applicant's case is an ‘exceptional case’. Unless satisfied that an exceptional case exists in which it would not be in the best interests of children to do so, the decision-maker must issue a positive notice. The principle under the WWC Act that must be administered is that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing. A child-related employment decision must be reviewed under the principle that the welfare and best interests of the child are paramount.
- Whether the case is an 'exceptional case' is a question of fact and degree to be decided in each individual case, bearing in mind the gravity of the consequences involved. I must have regard to considerations prescribed by section 226 of the WWC Act in determining whether an exceptional case exists. The term 'exceptional case' is not defined. What is an 'exceptional case' is a question of fact and degree to be decided in each individual case, 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’.
- There are some protective factors in this case. The applicant has a good relationship with her grandchildren, she has been an advocate for change of domestic violence legislation, she has stopped using illicit drugs, she has completed some counselling, she was working, and she has not re-partnered. However, these protective factors do not outweigh the risk factors in this case at this time. The applicant has not demonstrated insight. The applicant is prepared to behave deceptively and withhold information which she knows, or ought to know, would be significant to any assessment of her eligibility to care for children. The applicant also withheld the same information from the Department when she should have been aware that information about her criminal history would have been highly relevant to her care of children. The police transcript of interview with the applicant on 18 July 1991 clearly indicates the applicant was cognisant of concepts such as signing an Oaths Act declaration and perjury. She acknowledged to police when relaying evidence to them that ‘she doesn't like to miss things’. Notwithstanding the applicant being indemnified for her involvement in the offence of murder, the offence itself is classified as a serious offence under the WWC Act which means Parliament views such offending as particularly heinous in the context of the protection of children. The applicant held a blue card because of her deceitful behaviour. The applicant has minimised her involvement in the murder and has not acknowledged the impact of such an horrific crime occurring within metres of her sleeping children. This minimisation raises concerns about the applicant's insight into the effect of this behaviour on children as well as the domestic environment in which the children were living which could allow such a crime to occur. The serious behaviour was directly child related. Significantly, when given the first opportunity to do so, the applicant fled the scene leaving her children behind, alone in a house with two murderers. The applicant also minimises her drug offending by describing it as ‘some stupid things’ which occurred when her children were not in her care.
- The report by the applicant’s treating mental health social worker was untested but gives little information about the extent to which the applicant has insight into her offending behaviour. The report does not deal with risk factors or triggers that may continue to be present which could contribute to a risk of further offending behaviours and deals only briefly, and by implication, with protective factors or preventative strategies to reduce the risk of further offending. The report gives little further insight into the need for ongoing counselling, or issues that might be targeted as a result of such counselling.
- The object, purpose and nature of the decisions enshrined in the WWC Act support a precautionary approach to decision making on Blue Card matters. The tribunal must consider transferability of notices under the WWC Act when having regard to the best interests of children. Bearing in mind the gravity of the consequences involved, the risk factors identified in these proceedings render the case an exceptional case such that it would not be in the best interests of children and young people for the applicant to be issued with a positive notice and a Blue Card. The effect of issuing the applicant's blue card is that the applicant is able to work in any child-related employment or conduct any child-related business regulated by the Act, not just the purpose for which the applicant has sought the card, in this case to be a foster carer for her grandchildren. The tribunal has no power to issue a conditional blue card, for example requiring the applicant to be supervised. Once issued, the blue card is unconditional and fully transferable across all areas of regulated employment and business.
- The risk factors identified in the proceedings render the case an exceptional case such that it would not be in the best interests of children and young people for the applicant to be issued with a positive notice and blue card. The decision of the respondent that the applicant's case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue is confirmed.
- Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the tribunal prohibits the publication of the names of the applicant and any witnesses appearing at the application. The decision of the tribunal is to be delivered to the parties by email.
 WWC Act, s 353.
 Ibid s 221(2).
 Ibid s 6.
 Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492, citing with authority the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
 Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291, .
 RPG v Chief Executive Officer, Public Safety Business Agency  QCAT 331, .
- Published Case Name:
MIH v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
MIH v Director-General, Department of Justice and Attorney-General
 QCAT 157
07 Jun 2019