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Luong v Director-General, Department of Justice and Attorney-General QCAT 302
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Luong v Director-General, Department of Justice and Attorney-General  QCAT 302
Director-general, department of justice and attorney-general
11 October 2019
22 August 2019
The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is ‘exceptional’ within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has conviction for drug offences – where not categorised as serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 354, s 360
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28
FMA v Chief Executive Officer, Public Safety Business Agency  QCAT 210
APPEARANCES & REPRESENTATION:
JWJ Fenton, instructed by HW Bale and Son
REASONS FOR DECISION
- Ms Luong, a 25 year old woman, applied for a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), to enable her to undertake placement in the course of her university studies.
- The applicant’s criminal history comprises six offences:
- (a)Supplying Schedule 2 dangerous drugs (14 May 2015);
- (b)Possessing dangerous drugs Schedule 2 drug quantity of or exceeding Schedule 3 (2 charges) (14 May 2015);
- (c)Possessing dangerous drugs Schedule 1 drug quantity of or exceeding Schedule 3 but less than Schedule 4 (14 May 2015);
- (d)Receiving or possessing property obtained from trafficking or supplying (14 May 2015);
- (e)Supplying Schedule 2 dangerous drugs (4 January 2015).
- The respondent proposed to issue a negative notice so invited the applicant to make submissions about whether or not there was an exceptional case for the applicant. The applicant provided material in response.
- Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
- The respondent issued a negative notice on 7 December 2018 and Ms Luong seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
- Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’ is entitled to apply for a review of a ‘chapter 8 reviewable decision’ within the prescribed 28 day period. This includes a decision as to whether or not there is an exceptional case if, because of the decision, the respondent issued a negative notice.
The Legislative Framework
- The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act. The purpose of the Tribunal’s review is to produce the correct and preferable decision, on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits. The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount. On review, the Tribunal may confirm or amend the decision; set the decision aside and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.
- The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland. The principles under which the WWC Act is to be administered are:
- the welfare and best interests of a child are paramount;
- every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
- It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.
- Section 221 of the WWC Act provides:
- Subject to subsection (2), the chief executive must issue a positive notice to the person if—
- the chief executive is not aware of any police information or disciplinary information about the person; or
- 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—
- investigative information;
- disciplinary information;
- a charge for an offence other than a disqualifying offence;
- a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note for subparagraph (iv) — For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).
- the chief executive is aware of a conviction of the person for an offence other than a serious offence.
- 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.
- For present purposes, a positive notice must be issued unless the Tribunal is satisfied it is an exceptional case, in which it would not be in the best interests of children for a positive notice to be issued.
- The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts 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.
- In determining whether there is an exceptional case when a person has been convicted of, or charged with, an offence, the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act, as follows:
- in relation to the commission, or alleged commission, of an offence by the person—
- whether it is a conviction or a charge; and
- whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
- when the offence was committed or is alleged to have been committed; and
- the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
- 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;
- any information about the person given to the chief executive under section 318 or 319;
- any report about the person’s mental health given to the chief executive under section 335;
- any information about the person given to the chief executive under section 337 or 338;
- anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
- The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’
- ‘Conviction’ is defined in Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
- In determining whether there is an exceptional case the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved. The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.
The Material and Evidence
- The applicant provided the Tribunal with her application, an affidavit, an affidavit from a referee, and a report from a clinical psychologist. She gave oral evidence, as did two witnesses. She was represented by counsel who provided oral and written submissions.
- The respondent provided the Tribunal with its Reasons for Decision and attachments comprising pages BCS 1-57. The respondent had the opportunity to cross examine Ms Luong and her witnesses and made final oral submissions as well as handing up written submissions.
- The applicant told the Tribunal of a simple, happy and comfortable childhood. She spent time with family and attended high school in Brisbane. During high school the applicant’s parents bought a bakery on the Gold Coast where she worked while studying. She commuted from the Gold Coast to complete her high school studies, rather than change schools. Ms Luong spoke of suffering from low self-esteem during these years due to her weight and acne. In order to pursue a career in health and medicine she enrolled in a Bachelor of Biomedical Science upon finishing high school. She graduated in December 2014. In 2015 she enrolled in a Masters of Medical Ultrasound but ceased this course when she found that she was unable to obtain a trainee position.
- Also in 2014, her brother moved to Brisbane for TAFE. Her father insisted she move in with her brother which meant she no longer needed to commute to university. Her father paid the rent on a townhouse for the two of them.
- At this time, aged 19, she met her co-accused through friends and 6 months later she commenced a relationship with him. He was her first boyfriend and was four years older than her. Ms Luong said that his lifestyle was very different to hers as he had not finished high school, was not studying and spent his life partying and drinking with friends. She said she was in awe of him.
- When her boyfriend was looking for somewhere to live some months after their relationship started, she agreed he could move in with her. She did not tell her father of this but did tell her sister in law, who she said did not approve. Her boyfriend was then working in his father’s restaurant but shortly afterwards he started a new job and as he did not have a car she let him use hers. She said that she was aware of the nature of her boyfriend’s work but naively trusted him to protect her and not endanger her and turned a blind eye to it.
- She knew her boyfriend used her car and that there were suitcases in her home related to his business. She said she had an inkling of what they contained, but she did not open them and she was concerned that he was bringing drugs into her home. She said people did not come to her home to buy drugs from her boyfriend.
- The circumstances giving rise to the offences occurred on 14 May 2015 and arose out of the applicant’s involvement in her co-accused’s (her then boyfriend) cannabis trafficking business. The applicant was a passenger in her car being driven by the co-accused on 14 May 2105 when they were pulled over by police. The co-accused said there were drugs in the car. The police searched the vehicle and the cannabis was found. The applicant and her boyfriend were arrested. The police executed a search warrant at the applicant’s home.
- The police found more than 22 kilograms of cannabis in the applicant’s car and more than 9 kilograms of cannabis and more than ten grams of methylamphetamine in the applicant’s residence. $78,450 in cash was found in a safe in the main bedroom of the applicant’s residence and $1,350 in cash was located on a bedside table. Ms Luong allowed her car to be used for the supply of drugs and drugs and cash were kept at her residence. Text messages with her cousin were found on the applicant’s mobile telephone indicating she facilitated the supply of cannabis to him. The applicant did not personally profit from her involvement.
- Ms Luong ended the relationship with her co-accused in 2015 and she said she has not had contact with him since then.
- After being charged she moved back to the Gold Coast to live with her parents and siblings, working in her parent’s bakery and continuing her studies. She told her parents about the charges and she said that while they were very disappointed in her they are supportive of her.
- The applicant was convicted of all offences and sentenced to two years imprisonment, suspended for three years. In sentencing His Honour remarked:
- (a)The applicant had a limited role in the offences;
- (b)At the time of the offences the applicant was 20 years old and in a relationship with the co-accused: ‘It can be said you fell into bad company.’
- (c)In considering the dynamics of the relationship between the applicant and her co-accused he took into consideration the opinion of Mr Stoker, a psychologist, in a report dated 23 May 2015 and stated that ‘you were in love with the co-accused and this was your first serious relationship. He [Mr Stocker] is of the opinion that you would have been compliant in regards to any suggestions from your co-accused concerning his drug activities. In other words it is Mr Stocker’s opinion that your anxiety, naivety and infatuation with the co-accused resulted in you not thinking clearly about decisions you made which resulted in your offending behaviour.’
- (d)The applicant knew of the co-accused’s trafficking because she permitted her motor vehicle to be used for the purpose of picking up and transporting substantial amounts of cannabis;
- (e)The amount of cannabis involved must have warned her of the extent of the co-accused’s drug business;
- (f)The applicant did not profit from these activities and was not a drug user;
- (g)The relationship between the applicant and co-accused had ceased;
- (h)The applicant had a good educational record having completed a degree and then currently undertaking a masters degree;
- (i)The applicant had a good family background and there was nothing to suggest in her background that she would be involved in such activities in the future;
- (j)The applicant had no criminal history and had made an early plea of guilty which assisted in the administration of justice;
- (k)That charges of such a serious nature would ordinarily require the imposition of a custodial sentence;
- (l)Because of the applicant’s limited involvement in the co-accused’s activities, her youth, and that it was her first relationship and she fell under the co-accused’s influence, he would not impose time to be served in custody.
- In 2017 Miss Luong enrolled in a Bachelor of Health Science, with a view to improving her GPA in order to enrol in Bachelor of Medical Imaging, graduate as a radiographer and then enrol in a post graduate sonography course. She worked in her parent’s bakery and in a restaurant while studying. Still with the ultimate goal of becoming a sonographer, she identified a different course to achieve this, continued to improve her GPA and obtained an offer to her preferred course. She now works in a pharmacy and a dental clinic 3-5 days per week and has undertaken an eyelash extension course to gain another source of income while at university. Ms Luong has moved out of home and is no longer financially dependent upon her parents.
- Ms Luong said she was stupid and did not think deeply about what was happening while in the relationship with the co-accused. She said that she was young and naive and trusted her boyfriend not to do anything to put her in jeopardy. She did not think at the time about the effect of the supply of drugs on the community.
- Ms Luong said that she recognises now the negative effect of drugs on the community, including the impacts on the health and safety of individuals. She has reflected on her stupidity putting herself in a position where she and others could be harmed. In the future she said she will not tolerate drug use and said that if she found herself in a similar situation today she would report to the police, would be more vocal and would not tolerate it. She said she would be more assertive in the future as she now has more strength and control and is more aware.
- Miss Luong described her strong support network comprising her parents, her sister in law, high school friends and girlfriends who are health professionals. She no longer feels vulnerable and has become more confident. She has focused on her health and fitness in order to lose weight and her self-esteem has improved.
- Miss Luong said she has never used drugs and that she has grown and matured since the offending. In the three years since her convictions the applicant said she has changed her life and that she matured quickly, such that she now considers the effects of her actions. She said she accepted responsibility for her actions and wishes now to look after people and help them. She said she has a passion for study.
- Although this is the only incident comprising the applicant’s criminal history, Ms Luong has a traffic history. She has been fined and lost points/incurred demerit points in relation to 6 speeding offences over the period from 16 June 2012 to 18 April 2018. She was fined for using or permitting use of an unregistered vehicle in 2014. Three of the speeding offences have occurred since the criminal charges.
- Miss Luong provided to the Tribunal a report dated 21 May 2019 from Mr Stoker with whom she consulted once for the purposes of these proceedings and once prior to appearing before the court on the drug charges. Mr Stoker gave evidence that at the time of the offending the applicant had an anxiety disorder and was compliant concerning suggestions from her then boyfriend regarding his drug activities. In his opinion the applicant’s anxiety, naivety and infatuation with the co-accused resulted in her ‘not thinking clearly about the decisions she made, which resulted in her offending behaviour.’ His view at the time of providing his first report was that Ms Luong would not reoffend.
- Before the Tribunal Mr Stoker expressed the opinion that Miss Luong is remorseful and realises she made a serious mistake in her life and is determined not to let it happen again. He considers her risk factors are no longer present and that she has implemented a number of factors to reduce the risk of her reoffending including mixing with a new group of friends motivated to study and gain professional standing in the community or who are already professionals in the health industry and not associating with anyone who uses drugs. He expressed the strong opinion that she would not reoffend and said he had no concerns for her holding a blue card.
- Kayla Anh Le Luong, Miss Luong’s sister in law, provided a statement to the Tribunal and was available for cross examination. Kayla Luong said she has known the applicant for about ten years and has lived with the applicant and her family over some of that time. She expressed the view that the applicant was sheltered and naïve when she met her co-accused and that the applicant, influenced by him, made reckless decisions, associating with people with different goals to the applicant. She said that in her opinion the applicant has since matured, demonstrated by her re-engagement with study and work, her independence, having two jobs to support herself while she studies and reconnecting with her family. She trusts the applicant to look after her young children and expressed the opinion that the she and the applicant have a more open relationship now.
- The Tribunal accepts the evidence of these witnesses.
- In response to an opportunity to make submissions to the respondent in the course of its consideration of Miss Luong’s application, she provided a written reference from Sarah Le, the practice manager at the dental practice where she works, who stated that she was aware of Miss Luong’s criminal history. Ms Le said she had known the applicant for 3 years through mutual friends and professionally and had observed her to be a trustworthy, honest and hardworking employee who prioritised patient care. In the course of her employment in the dental practice Ms Le said that the applicant assists in procedures on young children and supports them to feel less anxious. Ms Le was not called to give evidence.
- The respondent expressed concern that Mr Stoker and Miss Kayla Anh Le Luong may not have been fully informed in relation to the offending behaviour, but acknowledged the positive changes made by the applicant since the offending and accepted that notwithstanding the seriousness of the offences the applicant had limited involvement in the commission of the offences.
- In undertaking this review and determining the correct and preferable decision the welfare and the best interests of a child are paramount.
- A blue card is transferable, allowing the holder to work in any child-related employment or conduct any child-related business regulated by the WWC Act. Thus, the Tribunal must take into account all possible work situations open to the applicant, not just the purpose for which a blue card is presently sought. Once issued a blue card is unconditional and fully transferable across all areas of regulated employment and business.
- In deciding whether an exceptional case exists the Tribunal is required to consider the matters set out in s 226(2) of the Act. In 2016 Ms Luong was convicted of the offences set out in paragraph  above, none of which are serious or disqualifying offences under the WWC Act. The applicant has no other convictions or charges. The offences were committed in 2015 when the applicant was 20 years of age. The convictions are for multiple drug related offences in which the applicant had a limited involvement in her then partner’s drug trafficking business. Drugs cause serious harm in the community and the distribution of drugs is a significant concern. The offending behaviour was not undertaken in the course of employment and there is no evidence children were involved. The applicant pleaded guilty and was convicted. The Court sentenced the applicant to two years imprisonment, suspended for 3 years. His Honour’s sentencing remarks are set out in some detail above. The applicant’s youth, early guilty plea, good family background and limited involvement in the enterprise undertaken by her then partner were factors in deciding to wholly suspend the sentence. The applicant’s supervisory period ended in June this year. No material was provided to the Tribunal as being material requested or received pursuant to ss 318, 319, 335, 337 or 338 of the WWC Act.
- The Court of Appeal has accepted the approach of considering relevant risk and protective matters in deciding whether a particular case is exceptional.
- There are a range of protective factors relevant to the applicant:
- (a)The applicant was 20 years of age at the time of offending and was naïve. Youth, immaturity and naiveté likely influenced the applicant’s behaviour;
- (b)Notwithstanding the serious nature of the offending, the material indicates the applicant had limited involvement in the activities;
- (c)The applicant indicates that since her offending behaviour, she has engaged in a positive lifestyle, ending her relationship with the co-accused, focussing on her studies to pursue her career and changing friendship groups;
- (d)The applicant demonstrated insight into and remorse for the irresponsible nature of her past behaviour;
- (e)Mr Stoker indicates that at the time of the offending the applicant suffered an anxiety disorder which may have been a contributing factor in her offending. In his opinion that applicant now has good psychological health; and
- (f)She has reconnected with her family and has their support.
- The risk factors for the applicant are:
- (a)Her offences including her involvement in the supply of drugs;
- (b)The applicant was been subject to a suspended term of imprisonment until June this year, and accordingly the respondent holds concerns about her risk of recidivism;
- (c)The applicant’s traffic history, particularly following the imposition of a suspended term of imprisonment;
- (d)That the material suggests the applicant was easily influenced by her co-accused and that she turned a blind eye to the extent of her co-accused drug activities; and
- (e)That a blue card, if issued, is fully transferrable across all areas of regulated employment and is unconditional.
- The Tribunal accepts that the offences noted are the only entries recorded on the applicant’s criminal history. The applicant has not engaged in any concerning or offending behaviour since the offending behaviour more than four years ago. However the passage of time is not determinative of whether or not a case is an exceptional case. This risk factor must be considered in the context of all the relevant circumstances.
- In relation to the conviction, the Tribunal notes His Honour’s sentencing remarks. Four years have now elapsed since these charges and the implementation of the changes in the applicant’s life. The Tribunal acknowledges that the applicant has been subject to a supervisory period until June this year.
- Miss Kayla Anh Le Luong and Mr Stoker both attested to changes the applicant has made to her life in the last few years. As Mr Stoker provided a report for the purposes of sentencing it is more likely than not that he was aware of the charges against Ms Luong. Miss Luong said she ended the relationship with the co-accused, focused on her health which assisted in addressing her insecurities, reconnected with her family and turned her attention to her future, focussing on her studies and asserting her independence by supporting herself during the course of her study. This was confirmed by the witnesses. The Tribunal accepts this evidence.
- Miss Luong presented as a young woman who has learnt from her experience. She presented as an honest and reliable witness, who sincerely regrets her past behaviour and wishes to move on from that past. She no longer associates with her co-accused, with whom she was infatuated, which caused her to misplace her trust and clouded her judgement. She has no other criminal history.
- The Tribunal finds that Miss Luong understands the negative impacts of drugs on the community, demonstrated remorse in relation to her past behaviour and has demonstrated insight. While the charges were sufficiently serious to ordinarily warrant a custodial sentence, mitigating factors included the applicant’s limited involvement, her youth, lack of maturity and her infatuation with the co-accused. The Tribunal accepts that the applicant does not use drugs. Since being charged she has sought to turn her life around and to make a better future for herself.
- In arriving at its decision the Tribunal has taken into account the applicant’s age and level of maturity at the time of offending, her infatuation with her co-accused, the absence of any offending behaviour prior to these charges, the applicant’s limited role in the offences and the positive changes the applicant had made to her life.
- The Tribunal is of the view that the protective factors outweigh the risk factors.
- On balance, after consideration of all of the evidence, the findings of fact, weighing the risk and protective factors, and the relevant matters in the WWC Act, including s 226(2), in exercising its discretion the Tribunal considers, on the balance of probabilities, that this is not an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.
- The decision of the respondent that the applicant’s case is an exceptional one within the meaning of s 221(2) of the WWC Act is set aside, and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional case.
 WWC Act, s 221(2).
 WWC Act, s 169 definition.
 WWC Act, s 353 definition.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 33(3).
 WWC Act, s 353(a).
 QCAT Act, s 19(a).
 QCAT Act, s 20.
 QCAT Act, s 20.
 WWC Act, s 360.
 QCAT Act, s 24(1).
 WWC Act, s 5.
 WWC Act, s 6.
Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard, 14 November 2000, 4391.
 Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291, .
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492, .
Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492, .
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28.
 WWC Act, s 360.
 Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492.
 FMA v Chief Executive Officer, Public Safety Business Agency  QCAT 210, .
 Ex 4, BCS 18-21.
- Published Case Name:
Bao-Han Luong v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
Luong v Director-General, Department of Justice and Attorney-General
 QCAT 302
11 Oct 2019