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TWE v Director-General, Department of Justice and Attorney-General[2021] QCAT 121

TWE v Director-General, Department of Justice and Attorney-General[2021] QCAT 121

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

PARTIES:

TWE

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML064-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

8 April 2021

HEARING DATE:

4 December 2020

HEARD AT:

Ipswich

DECISION OF:

Member Hemingway

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Publication of the names or identifying information of TWE or any person associated with her other than parties to the proceedings is prohibited pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks a review of decision to issue a negative notice and cancel blue card – where applicant has a criminal history without any serious or disqualifying offences-where the charged offences involved supply of dangerous drugs – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 66, s 19

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 167, s 221, s 226

Human Rights Act 2019 (Qld) s 8, s 58, s 31

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

Re TAA [2006] QCST 11

Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171

Briginshaw v Briginshaw (1938) 60 CLR 336

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303

SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES &

REPRESENTATION:

 

Applicant:

A Dara; Aboriginal and Torres Strait Islander Legal Service

Respondent:

N. Rajapakse; in house government legal officer of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

Background

  1. [1]
    This is an application for review of a decision by the Director-General (the chief executive officer), Department of Justice and Attorney-General (‘the Respondent’) that the case of TWE (‘the Applicant’) is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    The Applicant held a blue card for the periods 2010 to 2013 and 2017 to 2018. She is an indigenous person aged 46 who is the mother of three children and seeks a blue card to continue her work in child-related employment.
  3. [3]
    The Applicant was convicted on 12 November 2018 in the Magistrates Court at Ipswich of numerous charges of the supply of a dangerous drug.
  4. [4]
    The Respondent wrote to the Applicant on 12 November 2018 and on 8 February 2019 including copies of the updated police information indicating a change of criminal history.
  5. [5]
    The letters invited the Applicant to respond to the police information and make submissions as to why the applicant should not have her positive notice cancelled and a negative notice issued.
  6. [6]
    The Applicant was advised by letter dated 29 January 2020 that her eligibility to hold a blue card had been re-assessed and that the Respondent had issued her a negative notice under the “WWC Act”.
  7. [7]
    The Applicant was provided with written notice of this decision, reasons for the decision and the relevant review information.
  8. [8]
    On 20 February 2020, the Applicant applied to the Queensland Civil and Administrative Tribunal for a review of the decision of the Respondent to issue her with a negative notice.

Legislative Framework

  1. [9]
    The Queensland Civil and Administrative Tribunal (“the Tribunal”) reviews the decision of the Respondent in these proceedings. The Tribunal does this in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld).[1] The purpose of the review is to produce the correct and preferable decision.[2]
  2. [10]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children in Queensland through the administration of a scheme to screen persons seeking employment in particular areas or who operate relevant businesses. [3]
  3. [11]
    The decision under review is whether an exceptional case exists such that the presumption under section 221 of the WWC Act is displaced. This would mean that a negative notice could be issued to the Applicant and a blue card refused.
  4. [12]
    The Tribunal must be satisfied on the balance of probabilities and bearing in mind the gravity of the consequences that an exceptional case exists in which it would harm the best interests of children for a positive notice to be issued.[4]
  5. [13]
    The Tribunal must ensure that the paramount consideration is the best interests of children in assessing if the case is an exceptional case.
  6. [14]
    In the review process, the Tribunal considers all the information before the Tribunal and the merits of the case subject to the objects and intention of the WWC Act.
  7. [15]
    The Tribunal also considers the factors prescribed in section 226 of the WWC Act.    
  8. [16]
    The issue for determination then where the convictions do not relate to a serious or disqualifying offence is whether an exceptional case exists. [5]
  9. [17]
    What is an exceptional case is not defined in the legislation. Section 226 of the WWC Act refers to the factors the Tribunal must consider in the review of the Decision.
  10. [18]
    The standard of proof required to establish that an exceptional case exists is on the balance of probabilities.
  11. [19]
    Any hardship or prejudice suffered by the Applicant due to the determination is not relevant to the finding of an exceptional case. [6]

Criminal History and Circumstances of the Offending

  1. [20]
    On 1 February 2018, police from the Tactical Crime Squad executed a search warrant at the Applicant’s address. Police located and seized a small quantity of cannabis, drug utensils and other drug items; scales, scissors and bowls. The Applicant’s mobile phone was also seized.
  2. [21]
    The Applicant stated to police that she collected money from family and friends to purchase cannabis for herself and friends who would then collect it from her at her home or in her absence she would leave it in a bag on the verandah.
  3. [22]
    At the time of the police raid on 1 February 2018, the Applicant stated that she knew it was an offence to supply dangerous drugs and that her actions constituted supply. She made full admissions to police and cooperated.
  4. [23]
    Subsequently the Applicant’s mobile phone was examined by police and found to contain two hundred text messages relating to the sale and supply of the dangerous drug, cannabis.
  5. [24]
    Police investigations reveal that the arrangements for the sale and collection of the drugs were that they were to be left in a bag on the verandah or in the pantry. The police also noted that the e-texts on the mobile phone contained recognised drug slang terms and monetary values and quantities for the drugs.
  6. [25]
    The Applicant made full admissions in questioning regarding the text messages found on her mobile phone.
  7. [26]
    The Applicant subsequently pleaded guilty to all offences.

The Applicant’s Case

  1. [27]
    At the time of the police search, the Applicant was aged 44, and the sole parent to three children aged six, thirteen  and fourteen.
  2. [28]
    The Applicant states that she believed the children were unaware of the Applicant’s drug-related conduct in her admitted personal use of cannabis or in the supplying of the drug to friends and family.
  3. [29]
    The Applicant cooperated in further questioning on 6 August 2018 when police questioned her about the content of text messages on her mobile phone which related to arrangements for the supply of the drugs to persons from her home.
  4. [30]
    The Applicant states that the drugs were supplied to a small number of people and that “strangers,” did not come to the property.
  5. [31]
    The Applicant stated that she used cannabis for a short time prior to retiring after her children were in bed. She did not get “high” when using the cannabis. She stated that she used it to destress and that she suffered headaches.
  6. [32]
    The Applicant acknowledged that her children would sometimes advise her that certain persons, known to them, were at the property. These people had come to collect the drugs by pre-arrangement.
  7. [33]
    The Applicant states that the children did not access the areas where the drugs were stored i.e. on the verandah or the cupboard under the sink.
  8. [34]
    The Applicant submits in final submissions that she has no other criminal history. She states that the convictions do not relate to disqualifying or serious offences in terms of the WWC Act.
  9. [35]
    The Applicant also submits her history in acting protectively towards, caring for and supporting her own children and young people.
  10. [36]
    The Applicant states that the Child Safety records demonstrate her ability to identify risk and to act to protect her children from domestically violent situations with a former spouse.
  11. [37]
    The Applicant states that the Child Safety records indicate that she and the children have been subject to domestic violence. She states that notifications to the Department of Child Safety have not resulted in any substantiation of the notifications adverse to the Applicant.
  12. [38]
    The Applicant states that she is well regarded by past colleagues and clients as a mentor and role model. [7]
  13. [39]
    The Applicant also cites her grief at the loss of her maternal grandfather who passed away in 2016. She also states she was affected by the terminal illness and subsequent death of her step-father in 2017.
  14. [40]
    The Applicant states that she was estranged from her family for a long period and that this was an additional contributing factor to her many stresses in life leading her to seek relief for her headaches. In the first instance this was pain relief which she rejected and then took up the use of cannabis.
  15. [41]
    The Applicant states that her children were also having difficulties and that she had experienced work stress.
  16. [42]
    The Applicant states that she used the cannabis to de-stress and that she was introduced to it by a cousin. She states that her children were not exposed to it as she used the drug after they had gone to bed and in her area of the home which she describes as a chill zone which the children did not visit.
  17. [43]
    The Applicant states that her use of cannabis was as casual as alcohol or cigarettes or procuring milk or groceries and makes a distinction between selling it for profit or selling it to strangers on the street. [8]
  18. [44]
    The Applicant states that she ceased the use of cannabis and severed ties with these former associates when the police knocked on her door and she was charged with the offences.
  19. [45]
    There is no suggestion in the Applicant’s view that any child or children were involved in these offences. She also states that her own children did not observe her to use the drug.
  20. [46]
    The Applicant states her feelings of, “devastation and shame,” when she explained to the children what was occurring when the police came to the home.
  21. [47]
    The Applicant states that her children were experiencing difficulties of their own. Her daughter was self-harming and her son was being bullied and that these matters concerned her as a caring parent.
  22. [48]
    The Applicant states that her life was unblemished by any criminal offending prior to these convictions and that she believes the offending to be very serious.
  23. [49]
    The Applicant asserts that the sentence she received indicates that the Court chose a non-custodial sentence [which] reflects criminality at the lower end of the scale. [9]
  24. [50]
    The Applicant states that her skill-set is sought after and that she enjoys the respect and support of former employers who wish to re-employ her.
  25. [51]
    Subsequent to the cancelation of her blue card she resigned her position and applied for Centrelink payments. She states that this has caused her considerable financial hardship.
  26. [52]
    The Applicant refers to the content of the second reading speech when the Bill for the WWC Act was introduced into Parliament as evidence of the purpose of the legislation; stating that the intention of the legislation is to protect children from future abuse and not to punish people twice.[10]
  27. [53]
    The Applicant states her belief that she does not represent a future risk of harm or abuse to children.
  28. [54]
    The Applicant states that the Respondent engages in speculation when suggesting that the Applicant’s own children were at risk.
  29. [55]
    The Applicant cites the Child Safety records, as well as her evidence given in the hearing and the precautions taken by the Applicant to conceal her activities as evidence of the Applicant acting protectively towards her own children.
  30. [56]
    The Applicant asserts that she in fact understands and acknowledges the seriousness of the offending and is remorseful and does demonstrate insight into her offending.
  31. [57]
    The Applicant states that she has undergone three courses being a drug diversion program, Family Healing, Working with Mob and 21 Days of Abundance.
  32. [58]
    The Applicant has undergone drug testing as required and returned negative drug tests conducted on 15 June 2020, 20 July 2020, 25 August 2020, and 5 November 2020. 
  33. [59]
    The Applicant continues to attend counselling since August 2020 as well as complying with the mental health case plan prepared with her medical practitioner.
  34. [60]
    The Applicant states that she has undergone and continues to seek assistance through counselling, has a good rapport with family and has established healthy relationships.
  35. [61]
    The Applicant’s mobile phone records indicate that she was arranging the supply of drugs whilst at children’s events such as a birthday party and a niece’s graduation.
  36. [62]
    The Applicant states that although she was communicating with friends about the supply of drugs on these occasions, there was no evidence to suggest that any of the children present at these events were aware of her drug-related communications whilst at these events.
  37. [63]
    The Applicant called numerous witnesses who were colleagues, employers, family and friends. Each made themselves available for cross examination by the Respondent at the hearing.
  38. [64]
    The Applicant states that her referees speak highly of her for working with their children and the applicant as a parent, they have no hesitation in the applicant looking after their own children. Most of them being aware of the charges the applicant was convicted of.[11]

The Witnesses for the Applicant

  1. [65]
    The following referees gave evidence of awareness of the offending; but they were unaware of the exact details when asked under cross examination: Dr BC, JC, DC, RC, NC, TC, AC, JC, ZC, CC.
  2. [66]
    The remaining referees indicated that they were not aware of the offending or the refusal of the blue card but were providing a character or personal reference. Their evidence on the connection between being a convicted drug offender and having potential care and control of children was limited.
  3. [67]
    All referees were unanimous in their praise for the Applicant in caring for children and as a child services practitioner in her various roles.
  4. [68]
    A general theme in the evidence of all witnesses was that the Applicant was a valued and successful person skilled to work with children and young people.

The Respondent’s Case

  1. [69]
    The Respondent states that the offending relates to the period between 24 August 2017 and 26 January 2018 and on 1 February 2018.
  2. [70]
    The Respondent submits that the offences are relatively recent and frequent and the last as recent as 2018.
  3. [71]
    The Respondent also states that the offences, whilst not serious offences, are significant.
  4. [72]
    The Respondent’s submissions state that the Applicant’s drug offending related to a period of stress that the Applicant was experiencing in relation to her family relationships and parenting her children and that those stressors have not been resolved.
  5. [73]
    The Respondent’s submissions state that the material further suggests a lack of insight by the Applicant in relation to her use and supply of cannabis and the use of cannabis amongst her support network including family and friends.[12]
  6. [74]
    The Respondent states that the normalisation of drug use ignores harm and risk of harm to the children in her care and that of the wider group of persons to whom she supplied drugs.
  7. [75]
    The Respondent expresses concern at the normalisation of illegal drug activity and the attitude of the Applicant to her role in promoting drug use, by supplying the drugs in her community.
  8. [76]
    The Respondent refers to the fact of the transferability of the blue card so that it cannot be made subject to conditions. The Respondent states that this is a relevant consideration for the Tribunal.
  9. [77]
    The Respondent submits that the Tribunal must consider the supremacy of the paramount principle when considering if this is an exceptional case and to balance this against rights of the Applicant.
  10. [78]
    The Respondent submits that there are a number of competing human rights relevant to the decision before the Tribunal. Both the rights of children and the Applicant must be considered.
  11. [79]
    The Respondent cites the Tribunal’s decision in the case of SSJ[13] concerning the application of the Human Rights Act 2019 (Qld) (“HR Act”) when the Tribunal is acting as a “public entity”.
  12. [80]
    The decision states that, when acting as a public entity the Tribunal is required to consider, “human rights Parliament specifically seeks to protect and promote,” “and to act and make decisions in a way that is compatible with human rights.”  The Tribunal must also interpret statutory provisions, “to the extent possible that is consistent with their purpose in a way that is compatible with human rights.”
  13. [81]
    The Respondent submits that the finding of an exceptional case will still be compatible with section 13 of the HR Act.
  14. [82]
    The Respondent also submits that any finding resulting in limitation on the Applicant’s human rights is still consistent with the object, purpose and paramount principle of the WWC Act which is that the welfare and best interests of children are paramount.[14]
  15. [83]
    The Respondent was given the opportunity to cross examine the witnesses called by the Applicant.
  16. [84]
    The Respondent submits that the Tribunal should be cautious in the weight given to the evidence of the witnesses who are family and friends as many appear in the opinion of the Respondent to excuse the illegal activity and to maintain that despite this history of illegal drug use the Applicant remains a suitable person to work with children. [15]
  17. [85]
    The Respondent states that the witness, JC, stated that she was not aware of the number of charges against the Applicant, but understood it to be only one charge and further that she would not comment upon the issue of whether, knowing this information, her support for the Applicant is unchanged.
  18. [86]
    The Respondent states that the witness, Dr BC, stated that she was unaware of any criminal history of the Applicant and was treating her for headaches. Dr BC stated that she was not aware that the Applicant had been issued with a negative notice.
  19. [87]
    The Respondent states that the witness, DC, stated she was not aware of the number of charges against the Applicant. She stated that she understood the charges related to taking someone somewhere to, “buy drugs.”
  20. [88]
    The Respondent states that the witness, RC, stated that she was aware of the 45 charges but that she was not aware of the particulars of the offences.
  21. [89]
    The Respondent states that the witness, KC, stated that she was aware that the Applicant’s blue card was refused but unaware of the circumstances of this.
  22. [90]
    The Respondent states that the witness, NC, stated that her understanding was that the Applicant was caught with an amount of marijuana.
  23. [91]
    The Respondent states that the witness, TC, stated that she was aware of the offending and that it was about some supply charges. She stated that the Applicant had not made the best decision that day and that it was, “one silly mistake.” She stated that the Applicant had showed remorse in regard to the effects of these events upon herself and her career.
  24. [92]
    The Respondent states that the witness, JC, stated that she understood the relevant event was picking up marijuana and dropping it to another relative. She remarked that, “she (the Applicant) had not done anything criminal, she wasn’t smoking it” and that “she did not agree with the supply thing.”
  25. [93]
    The Respondent states that the witness, CC, stated that he was aware of the offences arising from a criminal conviction for the supply of dangerous drugs but was unable to say how these matters affected the Applicant’s behaviour in relation to children.
  26. [94]
    The Respondent states that the witness, AC, stated that she was aware of the 44 charges relating to selling cannabis and using text messages. The Respondent submits that her evidence does not provide any details of insight or preventative strategies of the Applicant in relation to her drug-related behaviours.
  27. [95]
    The Respondent states that the witness, ZC, stated she was aware of the offences of possession and supply but no other information. She also stated that she had not spoken with the Applicant concerning the issue of how the Applicant’s drug- related behaviour would impact on children.
  28. [96]
    The Respondent notes that the dealing was occurring from the Applicant’s own home that she shared with her minor children.

Section 226 of the WWC Act

Protective factors

  1. [97]
    In this case the Tribunal considers the protective factors to be: 
    1. (a)
      No evidence of further offending;
    2. (b)
      The maturity of the Applicant and the fact of her having been a sole parent for a considerable period of time displaying an awareness of how to access services and supports;
    3. (c)
      The existence of negative drug tests conducted on 15 June 2020, 20 July 2020, 25 August 2020, 5 November 2020; 
    4. (d)
      The stated high regard in which the Applicant is held by peers, family and friends; notwithstanding their lack of awareness of the details of her offending;
    5. (e)
      The Applicant’s ability to identify risk factors for her own children and to assist them by appropriate interventions;
    6. (f)
      The Applicant’s reaching out to appropriate services and courses to improve her insight and her stated goal of establishing healthy living practices; her  increasing awareness of the value of supportive relationships for her, in particular with her mother;
    7. (g)
      The Applicant’s continuing counselling with Ms SC and completion of three programs: Family Healing, Working with Mob and 21 Days of Abundance;
    8. (h)
      Dr BC’s report that the Applicant is undergoing appropriate further investigation of her headaches through specialist and medical tests;
    9. (i)
      The Applicant’s stated commitment to remaining productive in the workforce to utilise her skill set;
    10. (j)
      Ms WC provided a written report which indicates that in her view the applicant’s insight is improving, that she appreciates the seriousness of her offending, that she displays motivation, regularity in attendance and perseverance.

Risk factors

  1. [98]
    In this case the Tribunal considers the risk factors to be: 
    1. (a)
      Ms WC’s written report does not deal with the issue of the normalisation of drug use evident in the Applicant’s own evidence and submissions;
    2. (b)
      The Applicant’s evidence appears to the Tribunal to minimise the seriousness of the offending and personal drug use, both illegal activities;
    3. (c)
      The evidence is that it was not until the Applicant was apprehended and convicted that the Applicant displayed concerns about the seriousness of the situation as it impacted her in the employment context and personally resulting in feelings of shame;
    4. (d)
      The Applicant’s general attitude to her illegal activity is evidenced by the casual and flagrant tone of the text messages;
    5. (e)
      The Applicant’s oral evidence that she has considered and spoken with Ms WC, “about the risk to her children whilst using marijuana in the house, the risk of people coming to the house and the risk of community drug use” at page 17 paragraph (d ) of the final submissions are not supported in Ms WC’s  report. This report comments that the Applicant understands the “seriousness of the offences and the impact they have had on the Applicant, her family and the wider community.” This comment does not demonstrate the required insight into the connection between the acceptance of drug use and the effect on her capacity to work with and care for children;
    6. (f)
      The Applicant’s assertions that her own children were unaware of her drug use and the fact that she was supplying the drugs (for an extended period) from the home they shared together shows a considerable disregard for the interests and well-being of her own children and extended friends, family and community;
    7. (g)
      The Applicant does not acknowledge the effect of her conduct on others and is mainly concerned with how the outcome has affected her and her prospects of chosen employment;
    8. (h)
      The Applicant concerningly states her belief that her children remained unaware of the illegal activity and demonstrates a lack of understanding and empathy about the rights of children to be protected from harm, and to be protected from exposure to dangerous, repetitive and illegal conduct;
    9. (i)
      The Applicant maintains, on the one hand to the police, that her children had access to her mobile phone to play games; but it is this mobile phone that was used to send and receive messages about the drug supply;
    10. (j)
      The evidence shows that whilst engaged in activities to support, guide and nurture children and young people, she was also engaging in unlawful activity of arranging the supply of illegal drugs on a regular basis i.e. being on the phone at the same time as she attended the children’s events;
    11. (k)
      The Applicant describes a secret life in which her true activities were concealed from family and friends. She offers little credible explanation for her actions; other than rationalisations that she was helping out others, like one would purchase milk, that the drug use and supply were secret from her children and others, that she did not get high, that the drugs were sold sporadically and not to strangers;
    12. (l)
      The Applicant does not fully acknowledge the seriousness of the offending. In the final submissions she seeks to excuse this as being a normal activity which is legal in other jurisdictions and commonplace in her community.

Consideration of the Evidence

  1. [99]
    The Applicant has a significant criminal history related to the supply of drugs.
  2. [100]
    The decision under review was whether the Applicant’s is an exceptional case which will displace the presumption in section 221 of the WWC Act. Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to the following matters:

... the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here designed to protect: children. [16]

  1. [101]
    The Tribunal must be satisfied as to whether this is an exceptional case such that it would not harm the best interests of children for the Applicant to have a blue card. The test is not simply whether the Applicant poses a threat to children or not.
  2. [102]
    The standard of proof, is that the Tribunal must be satisfied on the balance of probabilities[17] and bearing in mind the gravity of the consequences that an exceptional case exists. The burden of proof is not borne by either party.
  3. [103]
    In this case the gravity of the consequences if a blue card is issued is substantial. The Applicant fails to display any significant insight or remorse for the effect of her conduct on others, perhaps unknown to her, perhaps children and young people; but who may be damaged by the use of her supply of illegal drugs.
  4. [104]
    The submission of the Applicant that there is no evidence of supply to, or involvement of minors ignores the fact that once supplied, the Applicant has no control of the use of the illegal substances or the conduct of those using the drugs.

Section 226 WWC Act factors

  1. [105]
    Section 226 of the WWC Act refers to certain factors the Respondent must have regard to in establishing if an exceptional case exists. Above all the paramount consideration remains the welfare and best interests of children.
  2. [106]
    In regard to section 226 of the WWC Act, the Tribunal must take into account these factors:
  3. [107]
    The Applicant pleaded guilty and was convicted of drug offences that between 24 August 2017 and 26 January 2018 the Applicant supplied a dangerous drug on 44 occasions. The offences are not serious or disqualifying offences.
  4. [108]
    The offences were committed when children were present at the home of the Applicant. The Applicant’s children were aware that persons would call at the home to see the Applicant.
  5. [109]
    Arrangements for the supply of the drugs was conducted on the telephone whilst the Applicant was present at children’s events.
  6. [110]
    The Applicant pleaded guilty to 44 charges of supplying a dangerous drug and one charge of possession of a mobile phone used in connection with the commission of a crime as defined in part 2 of the Drugs Misuse Act 1986 (Qld) on 12 November 2018 in the Magistrates Court at Ipswich. His Honour, Acting MagistrateCridland sentenced the Applicant to a period of probation of two years and recorded a conviction.
  7. [111]
    The Acting Magistrate imposed a condition that the Applicant participate in drug testing and therapeutic interventions to address her illicit drug use.[18]
  8. [112]
    The Tribunal notes the submission of the Respondent that the correct interpretation of risk and protective factors is a qualitative assessment not a quantitative one.
  9. [113]
    The Tribunal accepts that it is not required to balance risks and protective factors in determining if an exceptional case exists and should apply additional weight to any risk factors that are established.[19]
  10. [114]
    The Tribunal notes the information supplied by the Queensland Corrective Services Department as follows:
    1. (a)
      This information relates to the records of the Applicant’s probationary period. She self-reported for the required interviews and was given permission to attend a family holiday aboard a cruise ship together with her children and extended family. This occurred on 20 December 2019 and concluded 29 December 2019. No adverse intel was reported, drug testing during the probationary period was negative. Periodic probationary interviews occurred. There was no evidence of further offending. The Applicant attended mental health counselling. She self-reported the situation in regard to her employment prospects and voluntary reporting of her criminal history to an employer. There are no reported concerns regarding the children in her care during her probation period. Her probation order expired 20 November 2020.
  11. [115]
    The Tribunal considered the information supplied by the Department of Child Safety, Youth and Women which is as follows:
    1. (a)
      The Applicant was involved in a domestically violent relationship with the father of her children.
    2. (b)
      An allegation was made that the paternal Great Grandfather had a prior history of sexual abuse of his nephew and that the Applicant's children were left in his care. Notification was made in May 2005. Subsequent investigation ascertained that the children were residing alone with the Applicant who did not intend to reunite with the father and so were not exposed to the paternal Great Grandfather. The notification was found to not be substantiated and the Applicant was considered to be acting protectively towards the children.
    3. (c)
      A further incident occurred where the police were called on 5 May 2008. The father was hit on the head by the Applicant but uninjured. The report states that the children (aged three and four) were unable to hear the disturbance. The Applicant was stated to be dealing with high workload and, “suffering severely from stress”.  The report states this to be a “child protection concern status” report and no evidence was found that “the children were at risk of physical, emotional or sexual harm or neglect.”
    4. (d)
      A report exists for a further incident of domestic violence involving an argument between the Applicant and her former partner on 7 November 2011. The children were in view or hearing range. The level of domestic violence is reported as low level. The Department stated that the Applicant had acted protectively and that the Applicant and children were not in need of protection.
    5. (e)
      A report dated 2 November 2016 describes conduct by the Applicant and allegations of abuse by her of her children and drug use. The report describes her conduct as verbally abusive, escalating and screaming at “the girls”.  The report was status closed on 8 December 2016. The matter was referred to police.
  12. [116]
    The Tribunal has considered the affidavit, submissions and life story of the Applicant, the submissions and reasons for the decision of the Respondent, the evidence given by the Applicant as evidence in chief and under cross examination, the evidence given by witnesses in chief and under cross examination, the information supplied by the Queensland Police Service, the Departments of Child Safety, Youth and Women and Corrective Services. 
  13. [117]
    The Tribunal finds the Applicant is endeavouring to regain control of her life and that she now takes the convictions seriously but that she lacks insight into how her conduct has the potential to affect the well-being of children. Her lack of understanding displays a genuine lack of a deep understanding of what protecting the welfare of children entails.
  14. [118]
    In the Applicant’s affidavit she maintains that she had a motivation to help her community.[20]
  15. [119]
    However, the Tribunal considers that her conduct was the opposite of this displaying fundamental misunderstanding by her of the paramount principle; that the well- being of children must prevail over all other considerations.
  16. [120]
    The Applicant has had no additional entries on her criminal history for four years, but The Tribunal has decided in other cases that the passage of time alone is not determinative whether or not a case is an ‘exceptional case’ exists. Although allegations or convictions may relate to offences committed a number of years ago, passage time does not detract from their seriousness. [21]
  1. [121]
    The attitude of the Applicant to the offending is found in the sworn evidence of the Applicant contained in her affidavit dated 14 September 2020, which deposes as follows:

It was during this time I was introduced to cannabis as a medicinal means of coping with stress by a cousin.

I did consult a General Practitioner about constant headaches and not being able to sleep, so he told me to use Panadeine Forte which made me feel sick, so I stopped using it.

I knew cannabis was illegal but it helped me sleep better and my headaches subsided when I tried it. I was very cautious about where and when I smoked it so the children did not see me do this.

I was also careful to store it where the children would not see it.

At the time, I used marijuana in low quantities on the front veranda at night some 30 minutes before bed.

I didn't get high; I didn't really have enough for this to happen, so by morning the effect would have worn off, and I put up with the headaches during the day as they seemed more manageable when I was working.

[I] knew certain family and friends were using cannabis too, and these where [sic] the people I helped get it.

Marijuana is so common in Aboriginal communities, we have our own word for it, "Yandi".

It was never my intention to "supply" the drug per say [sic], I did it as a helpful gesture.

We often helped each other get some as required. Someone would say, "Can you pick me up some yandi?" and I would agree. Likewise, they would help me too.

Not to belittle it, but in all honesty, it was like buying milk for your Neighbour; and I just did not consider the consequences.[22]

  1. [122]
    The Tribunal finds these sworn remarks concerning as they demonstrate that in September of 2020, prior to the QCAT hearing on 4 December 2020, the Applicant continued to regard the illegal activity as excusable.
  2. [123]
    The evidence of the Applicant’s witnesses, comprised of family, friends and colleagues endorses this view. The Tribunal excludes the medical practitioner from this assessment.  Their evidence contains the theme that the Applicant should not be punished further for a silly mistake; that somehow she is unfortunate to be caught.
  3. [124]
    In fact, the reverse is true. The Applicant is fortunate to be apprehended to save further harm to others, including children, an outcome the Applicant fails to fully understand or appreciate.
  4. [125]
    The Applicant shows a deep lack of understanding and insight in failing to appreciate how her own drug use might adversely impact her capacity to have children in her physical care following the use of drugs the previous evening.
  5. [126]
    The Applicant’s assertion that she did not, “get high” is a puzzling justification for her conduct. Though she may have felt fully capable, this may not be an accurate assessment by her of her own capacity. Cumulative and continuing drug offending by the applicant would likely detract from her ability to provide a protective environment for children in her care notwithstanding she felt capable.
  6. [127]
     The Applicant’s secret life as a drug dealer and user is about secrecy and concealment of wrong doing. It shows a lack of the basic insight, empathy and understanding which is essential to safe-guarding children's interests.
  7. [128]
    The Tribunal notes the decision in Re TAA[23] which describes the value of insight as follows:

The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children.

  1. [129]
    The Tribunal makes the following findings:
    1. (a)
      That the Applicant has not developed sufficient insight into the effects of her drug –related conduct upon friends, family and children, including her own children;
    2. (b)
      That the Tribunal does not accept the continuing assertion of the Applicant that her children knew nothing of her drug-related activity;
    3. (c)
      That the Applicant continues to deny a direct connection between the Applicant’s secret and illegal conduct and the welfare generally of children;
    4. (d)
      That the Applicant has expressed partial remorse for her actions but not sufficient to establish that hers is not an exceptional case;
    5. (e)
      That the Applicant’s remorse is mainly directed towards the impact of the illegal activity and its consequences upon herself;
    6. (f)
      That whilst the Applicant has developed a support network, they do not support an appropriate attitude to illegal drug use, but minimise and normalise it;
    7. (g)
      That the Applicant has sought assistance for reducing stress, a trigger for her illegal behaviour; but has not fully disclosed all relevant information to her treating practitioners;
    8. (h)
      That nowhere in the Applicant’s material does she demonstrate an understanding of the potential harm she may have caused to   her own children, those to whom she supplied drugs, or children in her wider community;
    9. (i)
      That the Applicant has taken steps to address negative outcomes for herself, but not others who may have been impacted by her drug-related conduct.
  2. [130]
    The Tribunal is satisfied that the HR Act has been complied with and that it has:
    1. (a)
      Given proper consideration to human rights relevant to the decision;
    2. (b)
      Acted and made this decision in a way compatible with human rights; and
    3. (c)
      in making the decision the Tribunal must act reasonably in the face of a statutory provision such as that containing the paramount principle. ”[24]
  3. [131]
    The Tribunal accepts the submission of the Respondent that the paramount principle justifies the limitation upon the rights of the Applicant and so a finding of exceptional case is compatible with the provisions of the HR Act.
  4. [132]
    Section 360 of the WWC Act requires the Tribunal to ensure that the protection from harm and the welfare and best interests of children is the paramount consideration when determining if an exceptional case exists.[25]
  5. [133]
    In the Tribunal’s view this is an exceptional case. The Tribunal’s findings conclude that a finding that the case is not exceptional is inconsistent with the paramount principle.
  6. [134]
    The Tribunal finds that this is an exceptional case based on the actions of the Applicant and her continuing beliefs which demonstrate an absence of insight and clearly show a lack of understanding, empathy and compassion for children.
  7. [135]
    Children have a right to be protected from exposure to drug involvement and to be cared for by people who are not using drugs that may impair their ability to promote and protect children’s best interests.
  8. [136]
    The Tribunal notes that the Applicant stated in the hearing that all witnesses who provided statements were available for cross-examination, but some were unable to be contacted by telephone in the course of the hearing. The Tribunal was satisfied that this caused no injustice to the Applicant and had no adverse bearing on the outcome.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19(a).

[2]Ibid, s 20 (1).

[3]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5.

[4]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30].

[5]WWC Act, s 221(1) (c).

[6]Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss JA).

[7]Final Submissions of the Applicant undated page 3 para d.

[8]Final Submissions of the Applicant undated page 5 lines 10-11.

[9]Final Submissions of the Applicant undated page 6 line 13.

[10]Final Submissions of the Applicant undated page 9 line 29 as stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh).

[11]Final Submissions of the Applicant undated page 10 para 3.

[12]Respondent’s submissions dated 13 January 2021 para 79.

[13]SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252, [110].

[14]Respondent’s submissions dated 13 January 2021 para 73-75.

[15]Ibid para 72.

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

[17]Briginshaw v Briginshaw (1938) 60 CLR 336.

[18]Transcript Sentencing Remarks BCS 147-150.

[19]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7].

[20]Affidavit of Applicant page 4

[21]Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243.

[22]Affidavit of the Applicant dated 14 September 2020 at para 23-24.

[23]Re TAA [2006] QCST 11, [97].

[24]Human Rights Act 2019 (Qld), section 58.

[25]Working with Children (Risk Management and Screening) Act 2000 (Qld), section 360.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 121

  • Court:

    QCAT

  • Judge(s):

    Member Hemingway

  • Date:

    08 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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