BE v Director-General, Department of Justice and Attorney-General
[2020] QCAT 498
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- BE v Director-General, Department of Justice and Attorney-General[2020] QCAT 498
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BE v Director-General, Department of Justice and Attorney-General[2020] QCAT 498
BE v Director-General, Department of Justice and Attorney-General[2020] QCAT 498
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | BE v Director-General, Department of Justice and Attorney-General [2020] QCAT 498 |
PARTIES: | BE (applicant) v director-general, department of justice and attorney-general (respondent) |
APPLICATION NO/S: | CML403-19 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 9 December 2020 |
HEARING DATE: | 30 November 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Member Fitzpatrick |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS - review jurisdiction – blue card – criminal convictions for drug offences, assaulting or obstructing a police officer – charge of unlawful possession of weapon– whether exceptional case warranting departure from the general rule that positive notice must be issued – numerous protective factors – consideration of mandatory factors Human Rights Act 2019 (Qld), s 13, s 26(2), s 31, s 34, s 48, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 16, s 17, s 221, s 225, s 226, s 227, s 228, s 229, s 231, s 353(a), s 354, s 355, s 536 AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 Commissioner for Children and Young People and child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25 RPG v Public Safety Business Agency [2016] QCAT 331 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | G Yates, in house lawyer, Blue Card Services, Department of Justice and Attorney-General |
REASONS FOR DECISION
Background
- [1]This is an application for review of a decision by the Director, Blue Card Services made on 21 October 2019 whereby a negative notice was issued under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (the WWC Act).
- [2]The respondent’s decision was that the applicant’s case was an ‘exceptional’ case in which it would not be in the best interests of children for the applicant to be issued with a positive notice and blue card.[1]
Legal framework
- [3]A review of the decision of 21 October 2019 must be made in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- [4]The Tribunal has all the functions of the decision maker for the decision being reviewed. The purpose of the review is to produce the correct and preferable decision. The Tribunal must hear and decide the review by way of a fresh hearing on the merits.[2]
- [5]The WWC Act deals with the issue of a blue card, or as it is described in the Act “a working with children clearance”.
- [6]The overarching objective of the WWC Act which the Tribunal must observe is to ensure that the welfare and best interests of a child are paramount, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[3]
- [7]The Appeal Tribunal has held that any hardship or prejudice caused to the applicant are not relevant considerations.[4]
- [8]Under s 221 of the WWC Act the Chief Executive must issue a working with children clearance if the Chief Executive:
- (a)is not aware of police or disciplinary information about the person,
- (b)is not aware of a conviction for any offence but is aware of - investigative or disciplinary information, a charge for an offence other than a disqualifying offence, a charge for a disqualifying offence dealt with other than by a conviction; or
- (c)is aware of a conviction for an offence other than a serious offence.
- (a)
However, a negative notice must issue if in the latter two cases the Chief Executive is satisfied it is an exceptional case, in which it would not be in the best interests of children if the clearance were granted.
- [9]The Act does not define an “exceptional case”. It is a matter of fact and degree to be decided in each case having regard to the interests of children.[5] Determining whether an exceptional case exists involves the exercise of discretion by the Tribunal.
- [10]The Tribunal must consider matters which strongly suggest it is not in the best interests of children that a blue card be granted and which overcome the starting point that someone who is charged with an offence that is not a serious offence will be issued with a blue card.
- [11]Upon its review the Tribunal must consider the factors in s 226(2) of the WWC Act.
- [12]By s 226(2) the Chief Executive, and on review the Tribunal, must have regard to the following in deciding whether or not there is an exceptional case for the person if the person has been convicted of or charged with an offence:
- (a)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 s 357, the court’s reasons for its decision.
- (b)Any information about the person given to the chief executive by the department of public prosecutions (s 318); and corrective services (s 319).
- (c)Any report about the person’s mental health given to the chief executive (s 335).
- (d)Any information about the person from the Mental Health Court (s 337) or the Mental Health Review Tribunal (s 338).
- (e)Anything else relating to the offence which the chief executive reasonably considers relevant.
- (a)
Information for consideration
Criminal history
- [13]The applicant’s relevant criminal history is:
- (a)One conviction on 23 August 2017 of assault or obstruct a police officer on 24 March 2017. The applicant was ordered to pay a fine of $500.00 and no conviction was recorded.[6]
- (b)One charge of unlawful possession of weapons category D/H/R weapon on 24 March 2017. The charge was withdrawn on no evidence on 23 August 2017.[7]
- (c)One conviction on 23 November 2018 of possessing dangerous drugs on 25 October 2018. The applicant was ordered to be of good behaviour for a period of four months and to participate in a drug diversion program, with a $400 recognisance attached to the sentence.[8]
- (d)Conviction for breach of the order imposed on 23 November 2018. The recognisance amount was forfeited. The applicant failed to participate in a drug diversion program.
- (a)
Traffic history
- [14]The applicant also has an extensive traffic history over a period from September 2010 to December 2018. The applicant’s evidence is that eight of the traffic offences related to use of her car by her then partner, however, the Tribunal cannot go behind convictions and must accept them as they are.[9]
Drug Use
- [15]Also relevant is the applicant’s acknowledged recreational use of the drug Ecstasy in 2016 and increasingly regular use of Methylamphetamine in 2017 culminating in the last criminal charge of possessing dangerous drugs in October 2018. By that time the applicant describes herself as dependent and that her life had spiralled out of control.
- [16]The offences of which the applicant has been convicted or charged are not serious offences nor disqualifying offences under the WWC Act.[10]
- [17]There is no evidence of any further offences of any kind from October 2018. However, breach of the recognisance is noted.
The Decision
- [18]The respondent provided a statement of reasons for the decision which sets out the following reasons as to why it was found not to be in the best interests of children for a positive notice to be issued to the applicant:
- (a)the applicant was convicted of drug possession in October 2018 after her first conviction in March 2017. The respondent was satisfied the applicant fully understood the criminality of her subsequent possession of methylamphetamine.
- (b)Based on the police brief of facts the applicant may have been involved in the production of methyl amphetamine. This was considered to be a significant risk factor. Further, the consequences of abuse of methylamphetamine make the user a risk to children’s physical and emotional needs.
- (c)Throwing a cup of water at a police officer and being charged with possessing an unlawful weapon raise concerns as to the applicant’s ability to present as an appropriate role model for children.
- (d)Concerns exist around the recency of the offending and drug use. Also, the applicant has not provided any submissions regarding the presence of a handgun in a vehicle which was registered in her name.
- (e)The applicant has not discussed her drug use in detail and the fact that she was using methylamphetamine as recently as October 2018 is a significant risk factor. Drug users are not able to provide a protective environment for children in their care or to be an appropriate role model for them.
- (f)The applicant’s character references, whilst positive and made with full knowledge of the applicant’s offending, do not mitigate concerns about the seriousness and recency of the applicant’s offending.
- (g)Once issued, a blue card is fully transferable across all areas of regulated employment and business, not just in the area for which the applicant has sought the card.
- (a)
Evidence
The applicant
- [19]
- [20]The applicant is 27 years of age. She is studying to become a paramedic and requires a blue card to undertake her course placement. The applicant’s need for a blue card is not a relevant consideration in this review. The applicant’s results in her university course are high, demonstrating that she is an excellent student.
- [21]Although not called as witnesses three of the applicant’s university lecturers gave very supportive and positive references about the applicant’s personality, skills and drive to succeed in her course.[15] I accept those references at face value as a record of their experience of the applicant. The applicant provided a positive reference from her employer who was not called, but whose opinion I also accept at face value.
- [22]As to the applicant’s personal history, the evidence reveals that she had a difficult adolescence when she became estranged from her mother, that she became involved with a partner and a circle of friends who were drug users and a bad influence on her and that during the period 2017 to 2018 the applicant used methylamphetamine on a regular basis, resulting in criminal charges against her. Her evidence is that she was under the influence of methylamphetamine at the time of the offence of assaulting a police officer when she threw a cup of water on the officer.
- [23]The applicant’s evidence is that after the last criminal charge she woke up to herself and took all necessary steps to stop her offending behaviour. These steps included seeking the help of her grandparents who took her in and provided emotional and financial support, going “cold turkey” to cease drug taking, learning to accept things she could not change, taking up exercise, wiping all contact with her old circle of friends and acquaintances, enrolling in university, making new friends and ensuring she has hobbies such as exercise. The applicant has sought to gain insight into her behaviours through her own efforts and in consultation with a psychologist. The applicant has developed a relapse plan which involves reaching out for professional support and which reflects on past triggers for drug use and offending behaviour. The applicant’s evidence is that through taking steps to address the triggers of uncontrolled emotions and irrational reactions she has managed those issues in her life and that her success at university has given her self-confidence and pride in her achievements.
- [24]The applicant says that she has turned her life around and that she has not taken drugs or engaged in offending behaviour since the charge of possessing dangerous drugs on 25 October 2018. The evidence given by the applicant’s witnesses confirms the applicant’s evidence. I will deal with their evidence later in this decision.
- [25]In cross examination the applicant was open and straight-forward about her drug use and its damaging effect on her life. She acknowledged her anti-social behaviour and the circumstances giving rise to criminal charges. The applicant was at pains to express remorse and to take responsibility for her own actions.
- [26]In response to cross-examination, the applicant denied any involvement in the production of methylamphetamine. In relation to her knowledge of her partner’s involvement in the production of methylamphetamine, the applicant said that she was naïve. Her evidence is that she knew what was used to smoke the drug but did not know what was used to produce it. The applicant said that the police did not show her the paraphernalia they alleged was found in relation to the production of the drug, they simply questioned her. The applicant was not charged with any offence.
- [27]In relation to the charge of unlawful possession of a weapon the applicant re-iterated that the police offered no evidence and the charge was withdrawn.
- [28]In relation to forfeiting a recognisance the applicant explained in cross-examination that although she had been directed to attend a drug diversion program, by the time it came time to attend she had well and truly stopped taking drugs and did not want contact with anyone involved in drugs.
- [29]When challenged in cross-examination as to whether she had only seen a psychologist and psychiatrist to help her legal case, the applicant affirmed that she had been given legal advice to obtain professional confirmation of her progress and any risk she may present to children. The applicant first attempted to see Drug-Arm for that purpose but was unable to attend its meetings because of Covid restrictions. The applicant then saw a psychologist for treatment and a report and saw a psychiatrist for the purpose of providing a report to the Tribunal. The applicant gave evidence that she had gained assistance in how to deal with her emotional triggers from the psychologist. Her ability to continue with consultations is limited by its cost. No evidence was given that the applicant sought professional help in order prevent imminent relapse, nor was the applicant cross-examined in that regard.
- [30]In all I found the applicant to be a credible witness. I accept her evidence that she is drug free and understands and is able to manage the emotional triggers which led to her offending behaviour.
Witnesses for the applicant
- [31]All the applicant’s witnesses knew of the applicant’s drug taking and criminal history.
- [32]The applicant’s father and step-mother gave evidence at the hearing consistent with their statements filed in the proceeding.[16] They confirmed that the applicant had come back into their lives, that she was drug free and that she no longer keeps “bad company”. They confirmed that she lives a healthy life maintaining work, study and exercise.
- [33]The applicant’s grandmother and step-grandfather gave evidence at the hearing consistent with their statements filed in the proceeding.[17] They confirmed their knowledge of the applicant’s offences. They say that they support the applicant in everything she does. The applicant has lived with them for two years and in that time she has avoided people who are no good for her, kept a job, gone to the gym and has made lovely friends. They confirmed her hard work at university to obtain good grades. The applicant’s grandmother said that the applicant knew she could rely on her and that they help her if she becomes emotional by talking things over. The applicant’s grandmother confirmed that the applicant has not relapsed. The applicant’s step-grandfather confirmed that the applicant has turned her life around. He said that when she came to live with them, he “read her the riot act” and told her that he had no tolerance for drugs and that she would have to comply with the rules. She has done so. He says that he knows the applicant would never use drugs again.
- [34]The applicant’s friend gave evidence consistent with her statement filed in the proceeding.[18] The applicant’s friend said that she is aware the applicant is working on her issues on every level and that she has moved away from her previous issues. She spoke of her close friendship with the applicant and noted the obvious love and care extended by the applicant to her small daughter.
- [35]There was also evidence called from a friend from university who was aware of the applicant’s history. Her evidence is that the applicant had “flipped her life around”. The friend gave evidence of the applicant having been offered tutoring work at university and that she has helped people at university.
- [36]I accept the evidence of the applicant’s family and friends that the applicant has not relapsed into any offending behaviours or drug use and that she lives a happy, healthy life comprised of study, a job, friends and exercise.
- [37]
- [38]On 12 May 2020 the Tribunal issued Directions that if the applicant filed a health report in the material on which she relies in the proceeding, then the report should address a number of factors to do with insight, risk and protective factors and preventative strategies. The psychologist addresses those factors.
- [39]The psychologist confirmed that he had seen the applicant as a patient on four occasions. The psychologist is a cognitive therapist. He gave evidence that the applicant demonstrated to him that she was very receptive and that she was putting the therapy into effect.
- [40]The psychologist’s evidence is that the applicant has good insight into the cause of her behaviours and the impact of her behaviour. He comments that her remorse is genuine. The psychologist says that he is unaware of any risk factors, or triggers that continue to be present and the likelihood of a relapse is low.
- [41]As to protective factors the psychologist said in his report and expanded in cross-examination that the applicant is developing, under advisement and spontaneously, protective strategies including:
- (a)insulating herself from social connections which might see her exposed to negative influences;
- (b)engaging in behaviours which increase the likelihood of her acting in a values congruent manner such as teaching at university and pursuing a career as a paramedic;
- (c)actively seeking out social environments which are conducive to her career and life aspirations;
- (d)increasingly developing insights and awareness of her immature predilections towards defiant and anti-social behaviours; and
- (e)“rewiring her brain” in an emergingly mature and functional manner.
- (a)
- [42]The psychologist concluded that he does not think the applicant poses a danger to children. His evidence is that he does not think the applicant requires any more treatment. The psychologist said that the moment the applicant realised she had the intellectual capacity to work through her problems she was liberated from her behaviours.
- [43]I accept the evidence of the psychologist that the likelihood of any relapse by the applicant is low, that she has good protective factors in play in her life and that she has insight into her behaviours. I consider that the psychologist’s evidence is reliable because of his knowledge of the applicant’s offending behaviour and his treatment of the applicant over a number of sessions.
- [44]Finally, the applicant relies upon a report of a consultant psychiatrist, dated 17 June 2020, filed in the Tribunal on 6 July 2020. The psychiatrist was unavailable to give evidence because he is currently in India and is uncontactable.
- [45]The respondent submits that I should attribute little weight to the psychiatrist’s report because the psychiatrist was unavailable for cross-examination. I consider the psychiatrist’s report to be of probative value and therefore do not intend to disregard it. I also note the Tribunal’s power under s 28 of the QCAT Act to inform itself in any way it considers appropriate. Because of the psychiatrist’s standing as a medical specialist I consider I can rely on his expert opinion. I note that the psychiatrist’s opinion is not inconsistent with the other evidence before the Tribunal which might otherwise cause me to attribute lesser weight to the report. I note that the psychiatrist was fully briefed with all the applicant’s relevant history and details of this application. The psychiatrist records that he undertook a comprehensive clinical assessment for the purpose of providing the report for use in these proceedings. Insofar as the respondent has raised specific parts of the report which should be treated with caution because the evidence is untested, I will do so.
- [46]The psychiatrist addressed the factors detailed in the 12 May 2020 Tribunal Directions. He concluded that the applicant has developed full insight into her offending behaviour. He said that she acknowledges and greatly regrets her past actions. He concluded that the fact the applicant has been completely abstinent from illicit drugs, has a very stable lifestyle for over a year and is much more mature emotionally removes any risk of re-offending and he deems her to be safe around children.
- [47]The respondent in its closing submissions was critical of the conclusion expressed by the psychiatrist that there are no more risk factors or triggers left which could lead to the applicant using illicit drugs or result in re-offending. The respondent says that this is an extraordinary statement to accept without the benefit of cross-examination.
- [48]I note that the psychiatrist gives a full explanation for his conclusion and reasoning, by reference to the factors which led to the applicant making incorrect choices and the positive steps she has taken to overcome those factors.
- [49]Nevertheless, I acknowledge that without the benefit of cross-examination it may be unsafe to rely upon the psychiatrist’s conclusion that all risk factors have been eliminated.
- [50]The respondent did not make submissions challenging the psychiatrist’s analysis of the protective factors which reduce the risk of further offending behaviours. Those factors include the strong and positive social network around her, success in her university course, a supportive employer, knowledge about the science of addiction and ways to abstain, use of cognitive behaviour techniques, a chance to reflect on her past, being more mature emotionally and intellectually and able to appreciate the positives of her “drug free life”. Also, development of hobbies and spending time with family. The psychiatrist concluded that these factors will protect the applicant from the risk of returning to illicit drugs.
- [51]Importantly, the psychiatrist undertook a detailed clinical assessment. On a clinical evaluation the applicant had no craving for illicit drugs. He concluded that the applicant was at the final Stage 6 on the Millner and Rollnick’s “Stages of Change” model. That is the termination stage, where she has made all the changes that are necessary for her to face her new life and continue in a productive manner. In a clinical assessment the psychiatrist said that the applicant has demonstrated that in addition to remaining abstinent for a prolonged period of time, she has made positive changes, overcome her past issues, has managed to maintain her new habits including through times of emotional stress and continues to improve.
- [52]The respondent has not submitted that this part of the psychiatrist’s report is unreliable for any reason.
- [53]Finally, the psychiatrist concludes that the protective factors addressed by him are preventative strategies. He notes the applicant has negative random drug test results. He concludes that she has reformed herself completely.
- [54]I accept the psychiatrist’s clinical assessment of the applicant and his conclusion that she has sufficient protective factors in place to protect against the risk of returning to illicit drugs.
Submissions
Respondent’s submissions
- [55]The respondent submits and I accept that the Tribunal must decide the question of whether or not an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[21]
- [56]I also accept that the task to be undertaken by me does not involve a weighing of risk factors against protective factors, rather those factors may be identified as part of the process of considering whether an exceptional case exists.[22] I do not accept the proposition that the Tribunal must apply additional weight to any risk factors that are established. In my view risk factors should be assessed for what they are in fact, and in terms of seriousness and likelihood of coming to pass. I also do not think it appropriate to come to the correct and preferable decision in this matter by reference to suspicions or speculation rather than found facts.
- [57]It is not possible or necessary for all risk to be eliminated. However, given the importance of protecting children the risk of the applicant again taking illicit drugs and engaging in criminal behaviour should be found as low, for me to then find that she is not exceptional within the terms of the WWC Act.
- [58]If there is more than a low risk of the applicant again using illicit drugs and engaging in criminal behaviour it would not be in the best interests of children who may come into contact with the applicant. I accept the respondent’s submission that the issue as to whether the applicant has adequately addressed the triggers leading to her drug and alcohol misuse, and subsequent offending behaviour, is a significant concern for the Tribunal’s consideration as to whether the applicant’s case is an exceptional case.
- [59]The respondent submits that the Tribunal cannot be satisfied on this point because:
- (a)professional assistance has been of limited duration;
- (b)the applicant’s natural recovery is insufficient;
- (c)the applicant sought professional help in May 2020 and her strategies may not have been effective;
- (d)the psychologist expressed views that the applicant’s rehabilitative progress was developing;
- (e)without adequate strategies to regulate the applicant’s emotions and reactions, the applicant has a propensity to engage in aggressive and antisocial offending behaviour towards members of the community including law enforcement;
- (f)the applicant has not had the opportunity to gain, and implement, effective strategies to address her triggers and stop her relapsing into drug or alcohol misuse and adequately mitigate the risk of reoffending.
- (a)
- [60]In oral submissions the respondent added that the applicant had never attended drug or alcohol counselling and that she had only attended on a psychologist to improve her prospects in this proceeding.
- [61]The respondent says that there is a lack of cogent evidence of mitigation against re-offending and that the Tribunal cannot be satisfied the applicant will not relapse and re-offend.
- [62]The respondent points to parts of the psychologist’s evidence that the applicant’s progress is still developing. The respondent challenges the psychiatrist’s report on the basis that the applicant attended on one occasion to obtain the report to support her application rather than to address her behaviours.
- [63]In all the respondent concluded that because of the recency of offending and the limited duration the applicant has been in recovery I should have concerns that the applicant has had no opportunity to gain effective strategies to mitigate against re-offending. On this basis it is said that the applicant’s is an exceptional case.
Applicant’s submissions
- [64]The applicant submits that she is not an exceptional case for the purposes of the WWC Act. She points to the evidence of her reformed life and that she has not relapsed over a period in excess of two years, which she submits is a good period of time to demonstrate that she is not at risk of relapse.
Consideration
- [65]I have accepted the applicant’s evidence and that of her witnesses. I find that the evidence demonstrates that to date the applicant has turned her life around from the date of her last offending in October 2018. I find that the applicant has not relapsed into drug taking or offending behaviour over that time.
- [66]I find that the strategies adopted by the applicant to overcome her drug use and the offending behaviour which resulted from the drug use have been effective. The strategies have been shown to be strong protective factors over the last two years and include abstinence, cognitive behaviour therapy, removing herself from a circle of bad company, successfully undertaking university study, making new friends, holding down a job, exercising and taking up hobbies, and living with supportive family.
- [67]All the applicant’s witnesses, including her treating psychologist and the reporting psychiatrist, confirm the strength and efficacy of these protective factors.
- [68]The applicant and her professional witnesses confirm that she has insight into the cause of her behaviours and that she expresses remorse for her behaviours. Further, the applicant has articulated a relapse plan. I am satisfied that the applicant demonstrates insight into her drug taking and offending behaviour. I am comforted by the fact that the applicant has thought deeply enough about her position to formulate a reasonable relapse strategy. The Tribunal has noted in many cases that good insight is an important protective factor against re-offending.
- [69]For all these reasons, I find that the applicant’s risk of relapsing into drug taking and re-offending is low given the steps taken by the applicant to address the causes of her behaviour. That is a view confirmed by the psychologist and psychiatrist upon whom I rely.
- [70]I find that the efficacy of the applicant’s strategies demonstrated over a two year period is sufficient to overcome the respondent’s concerns that not enough time has passed, that the applicant’s strategies are merely developing and do not mitigate against the risk of relapse and re-offending.
- [71]I reject the respondent’s submission that the fact medical reports were sought for use in the proceeding, and that the applicant did not seek out the psychologist and psychiatrist for treatment shows a lack of insight. It was entirely proper for the applicant to assist the Tribunal in its review by providing evidence from professional witnesses. The applicant complied with Tribunal Directions in relation to the content of the reports. In any event, the applicant did re-enforce her own strategy of abstinence and self-regulation with cognitive therapy from the psychologist, which he confirmed was successfully implemented.
- [72]The evidence does not support the respondent’s alternative concern that the applicant sought out assistance from the psychologist in May 2020 because of a particular risk of relapse.
- [73]I have taken into account the applicant’s poor traffic history. The evidence is that the applicant has not been charged with a traffic offence in the last two years. That is consistent with her current lifestyle which appears to be operating as a protective factor.
- [74]The offences of which the applicant was convicted arise out of illicit drug taking. Without minimising the risk the applicant’s behaviours might pose to children, relatively speaking and given the penalties imposed on the applicant, the offences are at the lower end of the scale. The period of serious drug taking by the applicant covered a period of about two years. I am satisfied that the applicant has moved on from that period of her life. It is reasonable to expect that the applicant could do so within a two-year period with the right strategies, support and determination. The evidence is that she has done so. I do not consider it necessary for the applicant to wait a further, longer period of time to demonstrate that she has successfully done so. That is consistent with the risk of relapse and re-offending being low.
- [75]I consider that the evidence given by the applicant at the hearing and the findings I have made, address the reasons stated by the respondent for refusing to issue a positive notice to the applicant. I note in particular that speculation the applicant may have been involved in production of methylamphetamine, in circumstances where the applicant was never charged with that offence, is not sufficient to amount to a significant factor as a risk to children. Likewise, the concerns expressed by the respondent in relation to the alleged presence of a handgun in the applicant’s motor vehicle, when the charge was not proceeded with for a lack of evidence, is not sufficient to amount to a significant risk factor.
- [76]For all these reasons I find that the applicant is not an exceptional case. I do not consider that the applicant represents a risk to the welfare of children if she were to be issued with a positive notice and a blue card.
Conclusion
- [77]The respondent submits and I accept that this Tribunal cannot direct the issue of a positive notice.[23]
- [78]I find that the correct and preferable decision is that the decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221(2) 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.
- [79]In conducting this review regard has been had to the Human Rights Act 2019 (Qld). I am satisfied that this decision is compatible with human rights and that to the extent there are any limitations on those rights, those limitations are reasonable and justifiable in accordance with s 13 of that Act.[24]
- [80]Finally, I consider that it is not in the public interest to release identifying information regarding the applicant and any witnesses for the applicant. Accordingly, this decision is to be published in a de-identified format. Pursuant to s 66 of the QCAT Act I order that publication of information that may enable the applicant and witnesses to be identified is prohibited.
Footnotes
[1]WWC Act, s 221(2).
[2]QCAT Act, s 19, s 20.
[3]WWC Act, s 6.
[4]AX v Commissioner for Children and Young People and Child Guardian (No2) [2012] QCATA 248 relying on Chief Executive Officer, Department for Child Protection v Scott (No2) [2008] WASCA 171.
[5]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [33].
[6]National Police Check Results Report BCS-41.
[7]Ibid.
[8]Ibid.
[9]Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, [36].
[10]WWC Act, Schedules 2, 4 and 5.
[11]Exhibit 4.
[12]Exhibit 5.
[13]Exhibit 6.
[14]Exhibit 7.
[15]Attachments 18, 19 and 20 to Exhibit 6.
[16]Exhibits 9 and 13.
[17]Exhibits 12 and 10.
[18]Exhibit 11.
[19]Exhibit 1.
[20]Exhibit 2.
[21]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, citing with authority the test in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
[22]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6],[7].
[23]RPG v Public Safety Business Agency [2016] QCAT 331, [28].
[24]Human Rights Act 2019 (Qld), s 13, s 26(2), s 31, s 34, s 48, s 58.