Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

BW v Director-General, Department of Justice and Attorney-General[2021] QCAT 158

BW v Director-General, Department of Justice and Attorney-General[2021] QCAT 158

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

BW v Director-General, Department of Justice and Attorney-General [2021] QCAT 158

PARTIES:

BW

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML421-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

12 April 2021

HEARING DATES:

31 July 2020

30 October 2020

WRITTEN SUBMISSIONS:

 

Applicant:

Respondent:

Undated (filed on or about 13 November 2020)

Dated 31 July 2020

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that BW’s case is not exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Publication of the name or identifying information of BW or any person associated with him, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

CATCHWORDS:

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 – criminal history – conviction of numerous charges including charge of trafficking in dangerous drugs – where conviction of charge categorised as serious offence and other charges not categorised as serious offences nor disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – application of s 225(1)(b) and s 225(2) of the Working With Children (Risk Management and Screening) Act 2000 (Qld) – whether applicant’s case was an ‘exceptional case’ in which it would not harm the best interests of children for the applicant to be issued with a working with children clearance  – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Human Rights Act 2019 (Qld), s 8, s 13, s 25, s 26(2), s 36(2), s 48, s 58

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 15, s 16, s 17, s 225, s 226, s 353, s 354, s 360, s 361, s 580, Schedule 7

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(1), s 18(1), s 19, s 20, s 21, s 66

Commission for Children and Young People Bill 2000, Explanatory Notes

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

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

Commissioner for Young People v Storrs [2011] QCATA 28

Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186

Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99

Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25

Re FAA [2006] QCST 15

Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257

APPEARANCES &

REPRESENTATION:

 

Applicant:

B.M. Fitzgerald, solicitor of Laneway Legal Solicitors

Respondent:

S. Jayatilaka and G. Carrington, In-house legal officers, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  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 BW (‘the applicant’) was not an ‘exceptional case’ within the meaning of s 225(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    The applicant is a fifty-year-old man.
  3. [3]
    The applicant seeks a working with children clearance to enable him to undertake work which supports and assists adolescent men.
  4. [4]
    The applicant applied to the respondent for a positive notice (since recent amendments to the WWC Act, now referred to as a working with children clearance) and blue card under the WWC Act.[1]
  5. [5]
    The applicant has a criminal history which is described in detail later in these reasons.  The applicant’s criminal history includes a conviction for a serious offence under the WWC Act.[2]  Other offences with which the applicant had been charged and convicted were neither a serious offence[3] nor a disqualifying offence.[4]
  6. [6]
    The respondent considered the applicant’s application pursuant to ss 225(1)(b) and (2) of the WWC Act having regard to the fact that the applicant had been charged with a serious offence.[5] The respondent was satisfied that the applicant’s case was not an exceptional case in which it would not harm the best interests of children for a positive notice to be issued.[6] Accordingly, by letter dated 28 October 2019, the respondent advised the applicant of its decision to issue a negative notice.
  7. [7]
    The applicant has applied to the Tribunal for a review of that decision.

Jurisdiction

  1. [8]
    A person who is not a ‘disqualified person’[7] may apply, within the prescribed 28-day time period, for a review of a chapter 8 reviewable decision,[8] which includes a decision as to whether or not there is an exceptional case for the person if, because of the decision, the respondent issued a negative notice.[9]
  2. [9]
    The applicant has satisfied the prerequisites to apply for the review because the applicant is not a ‘disqualified person’ and the applicant applied to the Tribunal for review within the prescribed 28-day time limit.[10]
  3. [10]
    Accordingly, the Tribunal has jurisdiction to decide the review pursuant to s 17(1) and s 18(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and s 354(1) of the WWC Act.
  4. [11]
    The decision under review is the decision of the respondent as to whether or not there is an exceptional case for the applicant, because that decision resulted in him being issued with the negative notice.[11]

The law

Law relating to review generally

  1. [12]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[12] Pursuant to ss 580(1) and (2) WWC Act (the transitional provisions), the Tribunal is required to apply the WWC Act, as amended, in relation to the review.
  2. [13]
    The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[13]
  3. [14]
    The purpose of the review is to produce the correct and preferable decision.[14]
  4. [15]
    The Tribunal must decide the review by way of a fresh hearing on the merits.[15]
  5. [16]
    The role of the respondent is to assist the Tribunal to make its decision and includes providing the Tribunal with relevant information, documents and things.[16]

Law relating to working with children clearances specifically

  1. [17]
    The WWC Act effectively provides that a negative notice must be issued to a person if the respondent is aware that the person has been convicted of a serious offence,[17] unless the respondent is satisfied it is an exceptional case in which it would not harm the best interests of children for a working with children clearance to be issued.[18] In that case, a working with children clearance must be issued.[19]
  2. [18]
    The relevant test is set out in ss 225(1)(b) of the WWC Act and 225(2) of the WWC Act.
  3. [19]
    Section 225 of the WWC Act relevantly provides:
  1. (1)
    Subject to section 223 and subsection (2), the chief executive must issue a negative notice to the person if the chief executive is aware the person-
    1. has been convicted of a serious offence.
  2. (2)
    If subsection (1)(a) or (b) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for the chief executive to issue a working with children clearance, the chief executive must issue a working with children clearance to the person.
  1. [20]
    The Appeal Tribunal has confirmed that the WWC Act places a barrier to persons with a conviction for a serious offence working with children.  The Appeal Tribunal has stated that the proper inference to draw must be that it would harm the best interests of children for persons with convictions for a serious offence to work with children, unless it is an exceptional case.[20]  It has further confirmed that changes in a person’s circumstances, which simply amount to them living in a law-abiding manner as society expects, not showing insight into how past criminal conduct might affect dealings with others, and functioning at a level expected of a person as their stage and age in life, are generally considered to be the ‘ordinary course’ and not exceptional.[21]
  2. [21]
    The term ‘exceptional case’ used in s 225(2) of the WWC Act is not defined in the WWC Act.
  3. [22]
    The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.
  4. [23]
    Section 226 of the WWC Act requires that regard must be had to certain matters in deciding whether or not there is an exceptional case for a person who is known to have been convicted of, or charged with, an offence. Section 226 provides:
  1. (1)
    This section applies if the chief executive –
    1. is deciding whether or not there is an exceptional case for the person; and
    2. is aware that the person has been convicted of, or charged with, an offence.
  2. (2)
    The chief executive must have regard to the following -
    1. in relation to the commission, or alleged commission, of an offence by the person-
      1. whether it is a conviction or a charge;
      2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      3. when the offence was committed or is alleged to have been committed;
      4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      5. in the case of a conviction - the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
    1. any information about the person given to the chief executive under section 318 or 319;
    1. any report about the person’s mental health given to the chief executive under section 335;
    2. any information about the person given to the chief executive under section 337 or 338;
    3. any information about the person given to the chief executive under the Disability Services Act 2006, section 138ZG;
    4. 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.
  1. [24]
    ‘Conviction’ is defined by 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’.
  2. [25]
    The Tribunal cannot go beyond convictions and must accept them as they are.[22] The Tribunal cannot now, in relation to the offence, accept a different version of events in relation to the facts concerning the commission of the offence.[23]
  3. [26]
    Other matters may be considered in addition to those listed in s 226 of the WWC Act.[24]
  4. [27]
    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:[25]

... 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, quite obviously, designed to protect: children.

  1. [28]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland, including through the screening of persons employed in particular employment or carrying on particular businesses.[26]
  2. [29]
    The Explanatory Notes to the Bill introducing the WWC Act make it clear that infringement on the rights of individuals may be necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.[27]
  3. [30]
    The Tribunal in FMA v Chief Executive Officer, Public Safety Business Agency set out the approach that should be taken by the Tribunal in a review of a decision of whether there is an exceptional case:[28]

‘Exceptional case’ is not defined in the WWC Act. What constitutes an exceptional case is a matter of fact and degree. It is settled law that it is a broad discretion considering the merits in each case. Hardship or prejudice suffered by an applicant is irrelevant. What amounts to an exceptional case ‘must take it out and beyond the ordinary circumstances reasonably expected to occur’. It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’. The passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.

  1. [31]
    In relation to comparable legislation, in Chief Executive Officer, Department of Child Protection v Scott (No.2), Buss J observed:[29]

The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.

  1. [32]
    The Tribunal may consider risk and protective factors when determining whether an exceptional case exists.[30]  What is relevant is whether there are exceptional circumstances which are capable of taking the case outside the normal rule and thus making it an exceptional case.[31]  There is no precondition of balancing nor an outweighing of negative risk factors to protective factors before an exceptional case is found.[32]  Further, the test is not whether there is an ‘unacceptable level of risk’.[33] 
  2. [33]
    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.[34]
  3. [34]
    Neither party bears the onus in determining whether an exceptional case exists.[35]
  4. [35]
    The Tribunal must review a child-related employment decision[36] under the principle that the welfare and best interests of a child are paramount.[37]

Law relating to human rights

  1. [36]
    When conducting a review of a child-related employment decision, the Tribunal is a ‘public entity’ under the Human Rights Act 2019 (Qld) (‘HRA’) and the HRA applies.[38]
  2. [37]
    Accordingly, the Tribunal must interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[39]
  3. [38]
    Further, except when a different action or decision is required because of a statutory provision or other law, [40] the Tribunal must:[41]
    1. (a)
      act or make a decision in a way that is compatible with human rights; and
    2. (b)
      in making a decision, give proper consideration to a human right relevant to the decision, at least by identifying human rights that may be affected by the decision and considering whether the decision would be compatible with human rights.[42]
  4. [39]
    A decision will be compatible with human rights if it does not limit a human right or if it limits a human right in a way which is reasonable and justifiable under the HRA.[43]

Matters required to be considered by section 226 of the WWC Act

Criminal history information

  1. [40]
    The applicant’s criminal history includes charges for the following offences:
    1. (a)
      Obstruct police officer (on 3 June 1999):
      1. On 3 June 1999, the Magistrates Court did not record a conviction but ordered that the applicant forfeit $50.00 bail;
    2. (b)
      Fail to state name when required by an investigator (on 17 November 1999):
      1. On 19 May 2000, the Magistrates Court did not record a conviction but ordered that the applicant pay a fine of $100.00;
    3. (c)
      Breach of bail condition (on 18 February 2004):
      1. On 19 February 2004, the Magistrates Court convicted the applicant of the offence but did not make an order for punishment;
    4. (d)
      Breach of bail condition (on 1 June 2005):
      1. On 9 June 2005, the Magistrates Court convicted the applicant of the offence and ordered that the applicant pay a fine of $120.00;
    5. (e)
      Trafficking in dangerous drugs – Schedule 2 (between 27 May 2002 and 17 September 2003) and Trafficking in dangerous drugs – Schedule 1 (between 27 June 2002 and 24 October 2002):
      1. It was alleged that between 15 May 2002 and 17 September 2003, when the applicant was aged approximately 31 and 32 years old, the applicant was significantly engaged in a drug trafficking enterprise, with quantities considered large and at the ‘wholesale level’.  One transaction was alleged to involve 3,400 tablets for a price of $64,600.00;
      2. The applicant pleaded guilty to one charge of Trafficking in dangerous drugs (being MDMA and cocaine) over a period of 16 months from 15 May 2002 and 17 September 2003 and was convicted of the offence.  The original charges were discharged on the basis of nolle prosequi;
      3. On 28 May 2008, the Supreme Court sentenced the applicant to serve a term of imprisonment for 10 years and six months in respect of the offence.  In sentencing remarks, Dutney J noted the absence of prior criminal history and that the financial benefit derived from the applicant’s involvement was disproportionately low in comparison to the price of the transaction.  His Honour noted that the applicant was found to have lived a modest lifestyle.  His Honour found that the applicant was motivated to offend by a drug debt of $30,000.00 which he and his former partner had incurred and having been victim to a serious violent attack following his failure to repay the debt.  His Honour noted that the applicant’s guilty plea, whilst not particularly early, had avoided a lengthy and expensive trial.  His Honour also considered the applicant’s family circumstances including his then custody of his four-year-old child and the likelihood that she would return to her mother’s care upon the applicant’s incarceration;
      4. The applicant’s conviction was declared to be a conviction of a serious violent offence.
    6. (f)
      Possess tainted property (in relation to the applicant’s alleged possession of the sum of $62,900.00 cash on 16 September 2003), Assaults occasioning bodily harm (in relation to the applicant’s alleged assault of a patron in a night club on 8 January 2004), Obstruct police officer (in relation to the applicant’s alleged resisting of arrest on 8 January 2004), Contravene direction or requirement (in relation to the applicant’s alleged refusal to state his full name and address to a police officer on 8 January 2004), Possessing/acquiring restricted items (in relation to the applicant’s alleged possession of a telescopic baton in his home on 8 January 2004), Unlawful possession of weapons (in relation to the applicant’s alleged possession of a small cannister of mace in his home on 8 January 2004) and Fraud – dishonestly gain benefit/advantage (in relation to the applicant’s alleged dishonestly gaining benefit of cable television services on 8 January 2004):
      1. On 2 June 2008, the Magistrates Court convicted the applicant of the offences. The Magistrates Court ordered the applicant to pay a fine of $750.00 and a fine of $500.00 respectively in respect of the first two offences but made no order for punishment in respect of the subsequent offences.
  2. [41]
    The applicant also has a Queensland traffic history between the years 2000 and 2020 listing a total of twenty-four infringements which includes two suspensions and three disqualifications.  The applicant’s traffic history includes ‘charges for an offence’ and constitutes ‘criminal history’ for the purposes of Chapter 8 of the WWC Act.[44]
  3. [42]
    A charge is a ‘conviction’ for the purposes of the WWC Act notwithstanding that a Court ordered that no conviction be recorded.[45]
  4. [43]
    The offence of Trafficking in dangerous drugs is a serious offence under the WWC Act.[46]  The other offences with which the applicant was charged were neither a serious offence[47] nor a disqualifying offence.[48]
  5. [44]
    There is no evidence that any of the applicant’s offending involved children.  Nevertheless, the applicant’s offending is relevant to employment, or carrying on a business, that involves or may involve children as follows:
    1. (a)
      The offence of Trafficking in dangerous drugs has been designated by Parliament as a ‘serious offence’.  That highlights the gravity of that offending having regard to the safety and wellbeing of children and others.  The nature of the offending would have involved the dissemination of dangerous drugs in society and would therefore have potentially put children and other vulnerable groups at risk from exposure to drugs or those adversely affected by drugs;
    2. (b)
      The other offending includes assault, weapons offences and obstructing police and a traffic history.  The offending gives rise to concerns about the applicant’s potential risk to the physical and emotional safety of children and other members of the community, as a result of him engaging in similar potentially dangerous behaviour in the future;
    3. (c)
      Generally, the applicant’s offending gives rise to concerns about the applicant’s ability to act lawfully, to have regard for public safety, to judge appropriate behaviour and to act in a manner which is conducive to the safety and wellbeing of children.  Children may be at an increased risk of physical and psychological harm by being cared for by a person who engages in such behaviours;
    4. (d)
      Further, the applicant’s offending models unsafe and unlawful behaviour.  The applicant’s offending raises concerns about the applicant’s ability to engage appropriately with children and young persons and to present as a positive role model to them.  The Tribunal has recognised that it can be harmful for children to become aware that people that they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong;[49]
    5. (e)
      Behaviour of that nature is inconsistent with the standard of behaviour required of a person entrusted with the care of children. It raises serious concerns about the applicant’s ability to provide a protective environment for children and to ensure their safety and wellbeing.

Criminal history information given under section 318 of the WWC Act

  1. [45]
    No information was requested or received pursuant to that section.

Sexual offender order information given under section 319 of the WWC Act

  1. [46]
    No information was requested or received pursuant to that section.

Mental health examination information given under section 335 of the WWC Act

  1. [47]
    No information was requested or received pursuant to that section.

Mental Health Court and Mental Health Review Tribunal information given under sections 337 or 338 of the WWC Act

  1. [48]
    No information was requested or received pursuant to those sections.

Information given under section 138ZG of the Disability Services Act 2006

  1. [49]
    No information was requested or received pursuant to that section.

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

  1. [50]
    Additional matters which are considered relevant include that, at the time of the offending, the applicant was a mature adult.  At the time of the serious offence, the applicant was aged between 31 and 32 years of age. 

Materials provided by way of Notice to Produce

Material from the Magistrates Court

  1. [51]
    In response to a Notice to Produce, the Department of Child Safety, Youth and Women (the Department) produced material which evidenced recorded concerns about the safety and welfare of the applicant’s child, particularly in relation to intoxication of the child’s mother and arguments between the applicant and the mother.

Witness evidence

The applicant

  1. [52]
    The applicant gave oral and written evidence which included the following matters. 
  2. [53]
    The applicant is a 50-year-old man.
  3. [54]
    He is a New Zealand Citizen.  His employment in New Zealand included work in the defence force, as a semi-professional sportsman and in hospitality.
  4. [55]
    He has lived in Australia since about 1993.
  5. [56]
    In early 2002, the applicant started associating with the ‘wrong’ crowd and participating in criminal activity over a period of approximately 16 months until he was charged with offences including Trafficking in dangerous drugs.
  6. [57]
    The applicant was on bail for a period of five years and he engaged in further offending when he was in the community on bail.
  7. [58]
    On 28 May 2008, the applicant was convicted of Trafficking in dangerous drugs (methylenedioxymethamphetamine and cocaine) and was sentenced to imprisonment for a term of ten years and six months.
  8. [59]
    On 21 October 2016, the applicant was released from prison on parole after serving eight years and five months in custody.
  9. [60]
    The applicant was then transferred to and held in immigration detention pending the determination of his application to reverse a decision to revoke his Australian visa. 
  10. [61]
    On 22 August 2017, the applicant was released into the community after the decision to revoke his Australian visa was reversed.
  11. [62]
    Prior to the applicant’s incarceration in 2008, the applicant had care of his youngest child for four days per week with the child being in the care of the child’s mother for three days per week.  Upon the applicant’s incarceration in 2008, the Department made an order for the child to live with the mother.  The Department received two notifications of concern in relation to the child in 2009 and 2013; however, after assessing the concern, the Department allowed the child to continue in the care of the mother. 
  12. [63]
    Whilst the applicant was incarcerated, he initially made informal arrangements for the care of his child.  In early 2017, he initiated family court proceedings to remove his child from the mother’s care for the protection of the child.  The child was subsequently placed in the full-time care of the applicant’s niece.
  13. [64]
    Since shortly after the applicant’s release into the community, the applicant has had full care of his youngest child who continues to live with him.  He is very involved in and supportive of his child’s life, schooling and extra-curricular activities.  The applicant’s eldest child is an adult who lives independently. 
  14. [65]
    The applicant is currently in a relationship with his partner of over two years.
  15. [66]
    The applicant has a large extended family and regular contact with and care of young children. 
  16. [67]
    The applicant has had a high level of contact with young people and has demonstrated behaviour consistent with that of someone who protects and promotes a child’s safety and physical and psychological wellbeing.
  17. [68]
    Since about 2012 when the applicant was incarcerated, it has been the applicant’s goal to work with troubled youth in gyms within a structured organisation or service, to provide an avenue for making positive life choices.  The applicant is not motivated by financial goals.
  18. [69]
    During the applicant’s incarceration, he undertook education and training and obtained a number of certificates.  He was mentor in a Drug Intervention Program and his role was to assist those who were flagged as requiring drug programs.  He was awarded a Certificate in Recognition of Dedication and Commitment to Support Others with Drug Intervention Program and Throughout the Centre.  He was also awarded certificates for appreciation and recognition in Level 2 Peer Support Mentor and a cultural program.  The applicant also completed a Certificate III in fitness. 
  19. [70]
    Since the applicant’s release into the community in August 2017, he completed further training to work towards his goals.  In 2019, he completed a Mental Health First Aider course, a certificate IV in personal training and an instructor course.  The applicant initially found it difficult to find employment.  He is now employed in a finance role. 
  20. [71]
    The applicant has been and continues to be an active member of a particular club (‘Club’).  He attends the gym facility every day and is involved in Club community life.
  21. [72]
    The applicant currently mentors young men over the age of 18 on a voluntary basis through a cultural organisation.
  22. [73]
    Prior to being charged, the applicant used drugs recreationally.  However, substance use and dependency was not a feature of the drug-related offending and that was reflected in the remarks of the judge at the time of sentencing.  The debt related to the purchase of drugs for sale, and not personal use.
  23. [74]
    The applicant maintains that he has the skills, strategies and insight into his drug use to maintain sobriety in the long term.  The applicant has a relapse prevention plan which was prepared in support of his application for parole.  The applicant has found the plan to be an effective tool to avoid relapse to drug use and he continues to utilise the plan’s strategies.  The applicant avoids work in the hospitality industry because it has been identified as a potential relapse risk and is not consistent with his relapse prevention approach.  The applicant has not used drugs since he was charged, over fifteen years ago.  He currently does not drink any alcohol whatsoever.
  24. [75]
    The applicant maintains that he has demonstrated motivation and an ability to abstain from further offending and continue living a changed life.  Since his release from detention in August 2017, the applicant has not reoffended nor had any kind of relapse toward that lifestyle.  He has demonstrated that he has followed through with his life goals and now has full-time care of his teenage child.  The applicant’s desire not to jeopardise his care of his child is motivation for him not to reoffend.  The applicant’s desire not to be separated from his family through likely deportation if he reoffended, is further motivation for him not to reoffend.
  25. [76]
    The applicant maintains that he now has good insight into his offending and the effects of his offending on his child and family and the community and children in general.  The applicant acknowledges that his offending was motivated by greed and poor decision making. 

Dr Jacqueline Yoxall, Psychologist

  1. [77]
    Dr Yoxall prepared a report dated 5 June 2017 in support of the applicant’s application to reverse a decision to revoke his Australian visa.  At that time the applicant was in immigration detention, having been released from prison on parole on 21 October 2016 after serving eight years and five months in custody.  Dr Yoxall’s report was based on her consideration of relevant documents and one interview/clinical assessment of the applicant which was conducted by teleconference on 24 May 2017.  In that report, Dr Yoxall concluded that:
    1. (a)
      The applicant’s then risk of reoffending was low and he did not then pose a danger to the community;
    2. (b)
      The applicant’s experience of incarceration was both challenging and difficult for him but was also very positive and growth promoting.  He used his time in incarceration effectively by working, progressing his education, obtaining vocational skills and giving back to the society by mentoring others in drug recovery programs and supporting other prisoners to amend their behaviour and better their lives;
    3. (c)
      The applicant had many protective factors including a strong support network, employment skills and opportunities for employment.  He presented as genuinely willing to adhere to any parole conditions provided and motivated to engage in any other counselling, education or rehabilitation programs recommended;
    4. (d)
      The applicant appeared to have genuine remorse for his offending, appeared genuine and had a detailed relapse prevention plan in place and realistic and achievable goals for the future;
    5. (e)
      The applicant’s only substantial risk would be any fragmentation of his relationships with his children or other close family members.  However, if that occurred, it was likely that the applicant had sufficient support that he would be able to address and cope with negative emotions without relapsing.
  2. [78]
    Dr Yoxall prepared a report dated 3 March 2020 in support of the applicant’s application for a positive notice and blue card.  At that time the applicant was living in the community following his release from incarceration and immigration detention.  Dr Yoxall read the reasons for the respondent’s decision.  Dr Yoxall’s report was based on her consideration of relevant documents and a brief review of the applicant which was conducted by teleconference on 24 February 2020.  In that report, Dr Yoxall concluded that:
    1. (a)
      The applicant’s account of the reasons for his offending does not support the conclusion that the applicant’s personal drug use was significant and that he potentially had a dependence.  Whilst the applicant had a short period of illicit drug use before the trafficking commenced, the applicant’s offending was perpetuated by financial greed rather than dependence.  However, in addition to other triggers, a return to drug use would be considered a substantial risk factor in reoffending;
    2. (b)
      Available information suggested that the applicant successfully implemented his drug relapse prevention plan which was part of his parole application;
    3. (c)
      The applicant did psychological work over eight years of incarceration in regard to developing personal insight, establishing new strategies to manage thoughts, emotion and behaviour and improving critical decision-making skills.  That was reflected in the applicant’s drug relapse prevention plan and relevant strategies to prevent relapse;
    4. (d)
      During his incarceration, the applicant contributed to the establishment of a support group for other prisoners and actively worked with other prisoners in terms of mentoring and coaching in fitness training, which was acknowledged by prison authorities;
    5. (e)
      The applicant reported that he was abstinent from drugs for a period of five years when he was on bail prior to being sentenced in 2008.  Further, there is no information to suggest that the applicant has since relapsed to drug use nor reoffended in the eighteen months since he was released to the community.  The applicant stated that he has also been abstinent of alcohol.  During that time, the applicant was subject to significant life stressors including the challenge of adjustment to the community after eight years in prison.  That demonstrates that the applicant has the skills, strategies and insight into his drug misuse to maintain sobriety in the long term.  Further, it demonstrates that the applicant has the capacity to live a responsible, law-abiding life and to manage potential negative influences of others;
    6. (f)
      The applicant appears to be genuinely committed to ongoing personal improvement following release from prison and detention, completing the Cert IV in Fitness and a Mental Health First Aid Course in 2019;
    7. (g)
      The applicant reported that he trained at the gym daily and remains engaged with a cultural support organisation;
    8. (h)
      It is acknowledged that bail and parole are likely to have acted as a significant restraint on the applicant’s behaviour;
    9. (i)
      The applicant stated that “his prosocial behaviour whilst on bail between 2003 and 2008 was motivated by a desire to stabilise his life [and]… to demonstrate to the Court, his capacity to live a responsible and law-abiding life, he was motivated to change his behaviour so that he could build a relationship with his then infant” child;
    10. (j)
      The applicant has a strong support network which will continue to be a substantial deterrent to reoffending;
    11. (k)
      The applicant clearly understands that further reoffending will most likely result in cancellation of his Australian visa and deportation and this is ample motivation for him to maintain a prosocial lifestyle and abstain from offending;
    12. (l)
      Information available from the applicant indicates that he has successfully followed through on his goals for the future and has followed his relapse prevention strategy;
    13. (m)
      The applicant has demonstrated regret and remorse for his offending and insight and empathy as to the impact of his offending on his family and the wider community including children;
    14. (n)
      The applicant demonstrates a high level of insight that is commensurate with the gravity of his criminal conduct;
    15. (o)
      The applicant is now heavily engaged in his role of primary carer to his teenage child and has close and regular contact with his extended family.  He has contact with children;
    16. (p)
      The applicant has now demonstrated a long period of behaviour consistent with that of someone who protects and promotes children’s safety and physical and psychological wellbeing;
    17. (q)
      The applicant’s life experiences over the last ten years and his progress in the last eighteen months since he returned to the community could be considered exceptional.  This has included: initiating protective action of his daughter whilst in custody, taking over full-time care of his daughter when released, initially with the support of his niece whilst living at her house, being an attentive and devoted father, abstaining from illicit drugs and alcohol, engaging in the community, engaging in ongoing personal and professional development and demonstrating commitment to using personal experiences to be a role model for others, to change behaviour and to live a positive life.
  3. [79]
    During cross-examination, Dr Yoxall gave the following evidence:
    1. (a)
      In 2017, Dr Yoxall administered psychological testing on the applicant and assed various static and dynamic risk factors to determine the applicant’s likelihood of reoffending.  The result of that testing was that the applicant scored within the lowest reoffending risk profile;
    2. (b)
      No information indicated that the applicant had drug dependence of a pathological nature (dependence disorder) despite his history of past use of alcohol and illicit drugs;
    3. (c)
      The applicant reported that the drug trafficking offending was primarily driven by greed for financial gain;
    4. (d)
      In 2017, the applicant was very insightful about his offending.  By February 2020, the applicant’s insight had developed further as a result of him living back in the community and having taken up a role of active fatherhood.  The applicant could then clearly articulate drivers of his offending and the destructive nature and impact of drugs, which he said he did not understand at the time of offending.  The applicant identified that he had distorted thinking not based in reality at the time of the offending.  He was also able to identify the significant effects of his offending on his child;
    5. (e)
      Since the applicant’s release into the community following his incarceration and immigration detention, the applicant experienced significant life stressors.  After over eight years’ imprisonment, the applicant would have experienced practical difficulties reintegrating into the community including combating stigma which is well documented as likely to be stressful and lead to reoffending;
    6. (f)
      However, the applicant’s readjustment back into the community is very commendable.  The applicant has demonstrated that he has life skills which he has been able to implement in an effective and sustainable way to successfully reintegrate back into the community.  He has proven that he is able to abstain from reoffending for over three years;
    7. (g)
      The applicant has demonstrated that he is able to manage life stressors.  The applicant self-reported no alcohol or drug misuse.  That is consistent with the high level of stability and functionality of the applicant’s life in the community.  He is employed, engaged in the community and is fully engaged in the care of his child.  It indicates that the applicant does not have the destabilising factor of alcohol and drug misuse;
    8. (h)
      The applicant’s life has changed significantly since the time of the offending;
    9. (i)
      In her experience, whilst it is common for persons in incarceration to talk about a desire to do mentorship and coaching of other prisoners, it is not common that they actually engage in it as the applicant has done.  From the available information, it appears that the applicant has maintained his pro-social drive and followed through with his aspirations by making clear and steady steps towards his goals from a sense of commitment, which is challenging to do in the long term;
    10. (j)
      In her experience, the applicant’s response has been extraordinary and very unusual.  The applicant’s case is unusual because of the amount that he has managed to achieve post-incarceration;
    11. (k)
      Based on available information, she would assess that the applicant had an even lower risk of reoffending in 2020 than in 2017 when she assessed him to be a low risk of reoffending;
    12. (l)
      The applicant’s traffic history since his release into the community was not considered by Dr Yoxall in preparation of her 2020 report.  However, it would not have made any substantial difference to Dr Yoxall’s views.  The speeding offences were in respect of less than thirteen kilometres over the speed limit.  Whilst it is not preferable behaviour nor pro-social behaviour and it presents a risk to the community, it is not uncommon across the community and, balanced against the other factors relevant to the applicant, does not indicate any substantial change to the applicant’s reoffending risk profile.

Applicant’s submissions

  1. [80]
    Written submissions were made by the applicant’s counsel.
  2. [81]
    The applicant’s counsel submitted that:
    1. (a)
      The applicant stated to Dr Yoxall that he accepts full responsibility and is very remorseful for his offending and that he has empathy for those who have been affected by his offending.  Further, the applicant stated that he feels guilt and shame for his offending;
    2. (b)
      The applicant stated to Dr Yoxall that he deeply regrets the impact of his offending on his family and the community as a whole;
    3. (c)
      The applicant stated to Dr Yoxall that he is focused on supporting his youngest child and having an ongoing relationship with both of his children;
    4. (d)
      The applicant’s incarceration for almost a decade was a significant life event which significantly altered the applicant’s thoughts and views prior to his incarceration;
    5. (e)
      During the applicant’s incarceration, he assessed his youngest child’s care and did not remove the child from the mother.  However, the applicant later made informal arrangements for other family members to care for the child;
    6. (f)
      The applicant reported that he has been abstinent from drugs for 17 years and there is no evidence to suggest that the applicant has relapsed to drug use;
    7. (g)
      The applicant was incarcerated for the offending for approximately eight years and was then placed in immigration detention;
    8. (h)
      The applicant has been back in the community for over three years, during a time of significant life stressors including adjustment to the community after a period of incarceration;
    9. (i)
      Dr Yoxall’s evidence is that the applicant’s adjustment back into the community is “really nothing but commendable”.  Dr Yoxall opined that the applicant’s reported current life circumstances indicate that his life was not destabilised or derailed by drug use;
    10. (j)
      Since his incarceration, the applicant has not reoffended, with the exception of traffic offences which include low range speeding and failing to stop at a red traffic light;
    11. (k)
      During the applicant’s incarceration and immigration detention, he undertook courses, participated in and led support programs and individually supported other young men to attempt to bring them back to family values and assist them to find out what got them to the point of being incarcerated;
    12. (l)
      The applicant has a detailed relapse prevention plan in place which was part of the parole application.  Further, Dr Yoxall opines that the applicant has implemented the plan successfully.  The plan includes various strategies to implement in response to specified situations, places, emotions or other experiences that may place him at risk of relapse.  Dr Yoxall opines that the strategies and the plan reflect the psychological work that the applicant did over eight years of incarceration in regard to developing personal insight, establishing new strategies to manage thoughts, emotion and behaviour and improving critical decision-making skills;
    13. (m)
      Dr Yoxall opines that the applicant presents a low risk of reoffending notwithstanding the applicant’s traffic offending since he was released into the community;
    14. (n)
      The risk of the applicant’s Australian visa being cancelled and him being deported to New Zealand if he were to re-offend is a significant protective factor because it would result in the applicant being permanently separated from his children, extended family and life in Australia;
    15. (o)
      The applicant has demonstrated insight into his offending behaviour and the thought processes that led him to that point.  The applicant reported to Dr Yoxall that his thinking at the time of the offending was distorted because he was arrogant and did not then consider the consequences of his actions on the community or his family.  Dr Yoxall opined that the applicant was ‘very insightful’ in 2017 and that was further developed to a ‘substantial and high level’ of insight in 2020.  Further, Dr Yoxall opined that not everybody is able to identify in that particular way;
    16. (p)
      The applicant has demonstrated an understanding of the impact of his offending on his family and the community as a whole and the devastating consequences that illicit drugs have on society and children in particular;
    17. (q)
      The applicant’s evidence is that since around 2012, he has been interested in working to support adolescent men in the community who may be taking the wrong path.  He states that he was inspired to do this work on observing the cycle of young men in incarceration;
    18. (r)
      The applicant believes that because of his own personal experience, he can offer a lot to young men.  Further, Dr Yoxall opined that persons with the applicant’s experience who can rebuild their lives and maintain a prosocial life can be positive role models and contribute substantially to the benefit of other people;
    19. (s)
      The applicant’s desire to mentor and support young men in the community and in juvenile detention would not harm their best interests, but rather would substantially benefit those young men and be in the best interests of children;
    20. (t)
      The applicant has been living a life outside of the ordinary course.  Dr Yoxall opined that the applicant has followed up on his aspirations to work with young males that are at risk by making clear and steady steps towards realising that and getting himself into a position where he can do it.  Dr Yoxall opined that the ‘amount that [the applicant has] managed to achieve post incarceration’ is ‘very unusual’ and ‘an extraordinary response’;
    21. (u)
      The applicant has demonstrated persistence to achieve a working with children clearance since he first applied for a blue card in April 2018.  The applicant has demonstrated determination to achieve his aim to help young people.  This demonstrates the change in the applicant’s character at the time of the offending to the present time;
    22. (v)
      The applicant has made many extraordinary steps to improve his life and the lives of those around him in his family and community, whilst in custody and since his release to the community over three years ago.  The applicant has maintained his focus to help adolescent men to learn from his experiences;
    23. (w)
      Dr Yoxall opined that the applicant is remorseful, has substantial and high-level insight, is at very low risk of offending and is extraordinary in the way he has gone about the course of his life since being back in the community;
    24. (x)
      The Tribunal should find that the applicant’s case is an exceptional case in which it would not harm the best interests of children for the applicant to be issued with a working with children clearance and blue card.

Respondent’s submissions

  1. [82]
    Oral and written submissions were made by the respondent’s lawyer.
  2. [83]
    The respondent’s lawyer submitted that:
    1. (a)
      Having regard to statements made in Commissioner for Children and Young People and Child Guardian v Eales,[50] the Tribunal should adopt a qualitative rather than quantitative approach in considering risk and protective factors to determine whether the applicant’s case is an exceptional case;
    2. (b)
      In determining the review of a child-related employment decision, the Tribunal is required to apply the principle that the welfare and best interests of a child are paramount.[51]  Further, having regard to that principle, the Tribunal must give additional weight to any risk factors that are established;
    3. (c)
      Any hardship or prejudice suffered by the applicant as a result of not obtaining a working with children clearance, including that he will be unable to pursue his goal of becoming a trainer and mentor to assist young people, is not a relevant consideration in determining whether the applicant’s case is an exceptional case;[52]
    4. (d)
      Further, any benefit to children from having access to the applicant’s skills is not relevant if it is not in the best interests of children for the applicant to be issued with a working with children clearance;[53]
    5. (e)
      The applicant failed to act protectively towards his child by not removing the child from the mother’s care during his incarceration, despite his knowledge of the mother’s intoxication and inappropriate behaviour;
    6. (f)
      The applicant has been subject to some form of supervision (through bail, imprisonment and parole) for a significant period of time since 2004.  The applicant’s release into the community after incarceration and immigration detention is relatively recent, in August 2017.  There has been insufficient time to demonstrate the applicant’s ability to abstain from further offending on a long-term basis without the support and beneficial deterrence offered by supervision;
    7. (g)
      The applicant states that he was released into the community in August 2017.  He was then subject to parole, however it is not clear when the applicant’s parole period ended;
    8. (h)
      Dr Yoxall’s 2017 report was in support of the applicant’s application to revoke his visa cancellation.  At the time of the assessment, the applicant was in immigration detention and had not yet had an opportunity to demonstrate his ability not to reoffend without supervision;
    9. (i)
      Dr Yoxall’s 2020 updated report is based on the applicant’s self-reporting of his conduct within the community since his release and the applicant’s belief that he has the capacity to change behaviour, recover from mistakes and establish strategies and skills to live a healthy, responsible and happy life;
    10. (j)
      Dr Yoxall’s 2020 updated report refers to the applicant being abstinent from drug use for a five-year period prior to his incarceration.  However, the applicant was subject to bail supervision and conditions at the time of that alleged abstinence;
    11. (k)
      Dr Yoxall stated that since the applicant has been in the community, he appears able to demonstrate his capacity to live a responsible, law abiding life and manage potential negative influences of others.  Given that the applicant is approximately fifty years of age, that kind of behaviour would only amount to him living as society expects and functioning at a level expected of a person at his stage and age in life, and is the ‘ordinary course’ and not exceptional;
    12. (l)
      Dr Yoxall did not take proper account of the applicant’s traffic offences since his release into the community;
    13. (m)
      The majority of the material provided by the applicant is copies of material provided in support of his request for revocation of a mandatory visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) and parole release.  The applicant has not made a substantive effort to provide material specifically prepared for the Tribunal proceedings which raises questions about whether he has given serious consideration as to this protective jurisdiction and his responsibilities as a holder of a working with children clearance;
    14. (n)
      Further, whilst that material outlines the applicant’s strategies to avoid relapse, identifies his triggers and details the insight he holds into his offending behaviour, it falls short of demonstrating that the applicant’s case is an exceptional case under s 225 of the WWC Act;
    15. (o)
      Once issued, a working with children clearance is unconditional and fully transferable across all areas of regulated employment and business.  Although the applicant has stated a desire to work with young men, he could work with children of any age, gender or vulnerability;
    16. (p)
      The applicant’s offending is concerning, particularly the drug trafficking offending in 2002 and 2003.  The applicant was approximately thirty years of age at the time of the offending and had life experience of being in the defence force, playing semi-professional sport and working as a security guard.  Despite that, the applicant’s evidence is that he then regarded his offending as a ‘victimless crime’ and he saw drug trafficking as an opportunity to make some ‘easy money’.  Although the applicant states that he has since realised the errors of his past beliefs, his inability to understand that at the mature age of thirty years old is a risk factor;
    17. (q)
      The respondent acknowledges that a protective factor may be that further offending may place the applicant at risk of being deported from Australia;
    18. (r)
      The respondent acknowledges that the applicant’s material indicates that he possesses some insight into his offending behaviour and the impact of that on his own children, other young people and the wider community.  That is supported by the reports of Dr Yoxall although Dr Yoxall’s 2020 report ignores the applicant’s traffic offending since his release into the community;
    19. (s)
      Although character references were provided to the respondent at the assessment stage, the applicant has not provided any updated statements from those referees.  Further, no character evidence witnesses have been made available for cross-examination before the Tribunal;
    20. (t)
      Having regard to all the circumstances, the Tribunal should find that the applicant’s case is not an ‘exceptional case’ and the decision of the respondent should be confirmed.
  3. [84]
    The respondent’s lawyer acknowledged that there are a number of competing human rights relevant to the decision before the Tribunal. The respondent’s lawyer submitted that a decision that the applicant’s case is not exceptional will nevertheless be compatible with human rights because it will be justified by the factors outlined at
    s 13 of the HRA, including because it will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which is itself a human right.  Furthermore, any limitation on the applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC Act, that is the welfare and best interests of children are paramount.

Consideration of the evidence and findings of fact

  1. [85]
    The ability of the Tribunal to assess the credibility of the witnesses through their demeanour and presentation whilst giving oral evidence was somewhat hampered by the fact that, due to COVID-19-related restrictions, the hearing was conducted by telephone.
  2. [86]
    In giving oral evidence by telephone, the applicant presented as reasonably articulate and intelligent.  It was difficult to assess his genuineness in giving some evidence.
  3. [87]
    In giving oral evidence by telephone, Dr Yoxall presented as being strikingly enthusiastic in her support of the applicant’s case.  The Tribunal notes that Dr Yoxall’s opinion and evidence was based on her consideration of relevant documents and one interview/clinical assessment of the applicant which was conducted by teleconference on 24 May 2017 and a brief review of the applicant which was conducted by teleconference on 24 February 2020. 
  4. [88]
    Dr Yoxall’s 2017 report stated that she considered documents including various certificates, statements of achievement and training records.  Dr Yoxall also apparently had the benefit of considering some letters of support although it appears that they were not updated with recent information subsequent to the applicant’s release into the community. 
  5. [89]
    Dr Yoxall’s 2020 report stated that she considered documents including a Mental Health First Aid Training Certificate, Certificate IV in Fitness, Relapse Prevention Program (2016), Sealed Notice of Risk dated 9 March 2017, letter from a community organisation dated 12 June 2018 and letter from the Club dated 11 June 2018.  In preparing that report, Dr Yoxall apparently had the benefit of considering more recent letters from the community organisation and the Club.  In preparing that report, Dr Yoxall apparently did not consider documentary evidence that was prepared more recently than June 2018.
  6. [90]
    As Dr Yoxall conceded, her opinions including that the applicant’s response has been extraordinary and very unusual because of the amount that he has managed to achieve post-incarceration, and at least later than June 2018, is based to a significant degree on information that the applicant  self-reported to her.
  7. [91]
    The Tribunal notes that much of the applicant’s evidence related to the offending, training completed and certificates obtained by the applicant during and subsequent to his incarceration are consistent with documentary evidence.
  8. [92]
    However, the Tribunal does note some inconsistency in what the applicant apparently reported to Dr Yoxall.  Dr Yoxall noted in her 2020 report that the applicant stated that “his prosocial behaviour whilst on bail between 2003 and 2008 was motivated by a desire to stabilise his life [and]… to demonstrate to the Court, his capacity to live a responsible and law-abiding life, he was motivated to change his behaviour so that he could build a relationship with his then infant” child.  The Tribunal notes that this statement appears to be inconsistent with the applicant’s offending during his bail period.
  9. [93]
    In these proceedings, the applicant has not specifically sought to rely on evidence from the community organisation and the Club and witnesses from those organisations were not made available for cross-examination.  Nor has the applicant sought to rely on evidence from other relevant people nor made them available for cross-examination.
  10. [94]
    No witnesses have been called to otherwise independently verify and provide context and detail about the applicant’s achievements particularly in relation to the applicant’s volunteer work, mentoring and success in reintegrating into the community since his release into the community.  There appears to be a lack of detail about the applicant’s achievements in that regard.
  11. [95]
    Further, there is no evidence regarding the length of the applicant’s parole period and when it was to end.  Indeed, it is unclear on the evidence whether the parole period has yet expired.
  12. [96]
    The evidence of the applicant and Dr Yoxall must be assessed in the context of these considerations, which is somewhat of a difficult exercise. 
  13. [97]
    Having carefully considered the evidence, the Tribunal makes the following findings of fact:
    1. (a)
      The applicant is a fifty-year-old man;
    2. (b)
      The applicant’s criminal history is as detailed above;
    3. (c)
      Prior to being charged with Trafficking in dangerous drugs, the applicant used drugs recreationally.  However, substance use and dependency was not a feature of the drug-related offending;
    4. (d)
      The applicant spent approximately five years on bail before being sentenced in respect of the charge of Trafficking in dangerous drugs;
    5. (e)
      Prior to the applicant’s incarceration in 2008, the applicant had care of his youngest child for four days per week with the child being in the care of the child’s mother for three days per week;
    6. (f)
      On 28 May 2008, the applicant was sentenced to ten years and six months’ imprisonment in respect of the charge of Trafficking in dangerous drugs;
    7. (g)
      Upon the applicant’s incarceration in 2008, the Department made an order for the child to live with the mother.  The Department received two notifications of concern in relation to the child in 2009 and 2013; however, after assessing the concern, the Department allowed the child to continue in the care of the mother;
    8. (h)
      Whilst the applicant was incarcerated, he initially made informal arrangements for the care of his child;
    9. (i)
      Since about 2012 when the applicant was incarcerated, it has been the applicant’s goal to work with troubled youth in gyms within a structured organisation or service, to provide an avenue for making positive life choices;
    10. (j)
      During the applicant’s incarceration, he undertook education and training and obtained a number of certificates.  He was mentor in a Drug Intervention Program and his role was to assist those who were flagged as requiring drug programs.  He was awarded a Certificate in Recognition of Dedication and Commitment to Support Others with Drug Intervention Program and Throughout the Centre.  He was also awarded certificates for appreciation and recognition in Level 2 Peer Support Mentor and a cultural program.  The applicant also completed a Certificate III in fitness;
    11. (k)
      In October 2016, the applicant was released from imprisonment on parole after serving eight years and five months in custody;
    12. (l)
      The applicant was then immediately transferred to and held in immigration detention, pending determination of his application to reverse a decision to revoke his Australian visa;
    13. (m)
      In early 2017, the applicant initiated family court proceedings to remove his child from the mother’s care for the protection of his child.  The child was subsequently placed in the full-time care of the applicant’s niece;
    14. (n)
      On 22 August 2017, the applicant was released into the community after the decision to revoke his Australian visa was reversed;
    15. (o)
      The applicant was subject to a period of parole, although it is unknown if or when it expired;
    16. (p)
      Since shortly after the applicant’s release into the community, the applicant has had full care of his youngest child who continues to live with him.  He is very involved in and supportive of his child’s life, schooling and extra-curricular activities.  The applicant’s eldest child is an adult who lives independently;
    17. (q)
      Since the applicant’s release into the community, he completed further training to work towards his goals.  In 2019, he completed a Mental Health First Aider course, a certificate IV in personal training and an instructor course.  The applicant initially found it difficult to find employment.  He is now employed in a finance role;
    18. (r)
      The applicant is currently in a relationship with his partner of over two years;
    19. (s)
      The applicant has a large extended family and regular contact with and care of young children;
    20. (t)
      The applicant is an active member of the Club;
    21. (u)
      The applicant is actively involved in a cultural organisation and has mentored young men over the age of 18, although the extent and detail of the applicant’s actions in that regard is unclear;
    22. (v)
      The applicant has a drug relapse prevention plan which was prepared in support of his application for parole.  Since his release into the community, the applicant has found the plan to be an effective tool to avoid relapse to drug use and he continues to utilise the plan’s strategies;
    23. (w)
      The applicant has not used drugs since he was charged, over fifteen years ago.  He currently does not drink any alcohol whatsoever;
    24. (x)
      Since his release into the community in August 2017, the applicant has not reoffended, with the exception of traffic history which is detailed above;
    25. (y)
      The applicant would be at risk of deportation from Australia if he reoffended; and
    26. (z)
      The applicant is motivated not to reoffend, in particular to maintain his care of and relationship with his children and also to avoid likely deportation from Australia.

Consideration of the law and facts relevant to this case

  1. [98]
    The Tribunal is required to determine whether an exceptional case now exists in respect of the applicant.
  2. [99]
    As required, the Tribunal has considered the matters set out in s 226(2) of the WWC Act relevant to this case (which are detailed above) in deciding whether an ‘exceptional case’ exists.
  3. [100]
    The Tribunal has also considered the submissions on behalf of the applicant and respondent respectively concerning relevant risk factors and protective factors.
  4. [101]
    The Tribunal does not accept the respondent’s submission that the applicant failed to act protectively towards his child during his incarceration.  The Tribunal accepts that the applicant took informal steps and then formal steps to protect and promote the welfare of his child. 
  5. [102]
    The Tribunal accepts that the applicant’s criminal history and facts and circumstances relevant to the applicant’s offending is as detailed above.  The applicant was charged and convicted of numerous offences.  The offence of Trafficking in dangerous drugs is a serious offence, however the other offences are neither serious offences nor disqualifying offences.[54]
  6. [103]
    It is of particular concern that the applicant was a mature adult of approximately 31 to 32 years at the time of his serious offending because it indicates that the applicant seriously lacked good judgement and an ability to act responsibly despite his age and life experience.  It is also of particular concern, that the applicant engaged in further offending when he was on bail.
  7. [104]
    For all of the reasons that are detailed above, the applicant’s offending behaviour is a significant risk factor which gives rise to very serious concerns about his ability to provide a protective environment for children and to ensure their safety and wellbeing.
  8. [105]
    The Tribunal accepts that the applicant’s incarceration for almost a decade was a significant life event which likely altered the applicant’s thoughts and views prior to his incarceration.
  9. [106]
    The Tribunal accepts that there are now a number of factors which are likely to be protective against the applicant engaging in further offending.  The applicant is now employed, in a stable relationship of two years and enjoys a close relationship with his children.  He is also engaged in likely positive influences such as the Club and a cultural organisation. 
  10. [107]
    The Tribunal accepts that the risk of likely deportation from Australia if the applicant reoffended and the applicant’s motivation to maintain care and a close relationship with his children are also likely to be significant protective factors.
  11. [108]
    The Tribunal accepts that since the 2005 offending, the applicant has not engaged in any further offending behaviour, apart from the traffic history.  Whilst not insignificant, the applicant’s traffic history since he was released into the community is of a relatively minor nature. 
  12. [109]
    The Tribunal also accepts that the applicant has been abstinent of drugs for some fifteen years.
  13. [110]
    The Tribunal notes that the applicant’s achievements in this regard are despite the likely considerable life stressors of readjusting to the community after a considerable period of incarceration and detention.
  14. [111]
    Passage of time alone is not determinative of whether or not a case is an exceptional case[55] and it is necessary to consider this risk factor and other risk factors in the context of all the relevant circumstances.
  15. [112]
    The Tribunal notes Dr Yoxall’s evidence that in her opinion there is a low risk of the applicant reoffending. 
  16. [113]
    Dr Yoxall’s opinion is that the applicant is remorseful for his offending and that he has now developed insight into the drivers for his offending and its effects on his children, family and the wider community including children in general.  The applicant was able to articulate those matters to the Tribunal.  However, the Tribunal found it difficult to assess the genuineness of the applicant’s evidence in that regard.  The Tribunal recognises that genuine remorse and development of insight is very relevant to consideration of risk of reoffending.
  17. [114]
    The Tribunal notes that Dr Yoxall’s opinion is, to an extent, based on the applicant’s self-reporting, particularly in relation to events that occurred since June 2018.  The Tribunal notes that there is some consistency between the applicant’s reported actions since that time and his educational and vocational achievements during and after his incarceration which are confirmed by documentary evidence.  It appears that the applicant has at least been actively engaged in the process of implementing a plan to achieve his goal.
  18. [115]
    However, Dr Yoxall’s note in her 2020 report, that the applicant stated that “his prosocial behaviour whilst on bail between 2003 and 2008 was motivated by a desire to stabilise his life [and]… to demonstrate to the Court, his capacity to live a responsible and law-abiding life, he was motivated to change his behaviour so that he could build a relationship with his then infant” child, appears to be inconsistent with the applicant’s offending during his bail period.
  19. [116]
    In relation to Dr Yoxall’s evidence that the applicant’s response has been extraordinary and very unusual because of the amount that he has managed to achieve post-incarceration, the Tribunal notes that there is an absence of context and detail in relation to the applicant’s reported pro-social behaviour (for example, in terms of his mentoring and the like) since his release into the community.  Further, the applicant’s evidence in that regard is not supported by evidence of independent witnesses. 
  20. [117]
    There is some merit to the argument that as the applicant is now fifty years of age, his behaviour in the community would only amount to him living as society expects and functioning at a level expected of a person at his stage and age in life, and is the ‘ordinary course’ and not exceptional. 
  21. [118]
    Further, it is relevant that the applicant was incarcerated and then in offshore detention until August 2017.  The applicant was then subject to a period of parole, although it is not clear if and when that expired.  It is therefore unclear what period of time the applicant has been in the community in an unsupervised capacity.
  22. [119]
    In the circumstances then, there is also merit to the respondent’s submission that there has been insufficient time to properly test the applicant’s ability to live unsupervised in the community in a lawful and responsible manner.  Certainly, there is no evidence that the applicant has done so for a relatively lengthy period of time.
  23. [120]
    For the above reasons, the Tribunal accords less weight to the opinion of Dr Yoxall.
  24. [121]
    Having regard to all the evidence and matters set out above, the Tribunal is not satisfied, on the balance of probabilities, that the applicant’s case is an ‘exceptional case’.
  25. [122]
    The Tribunal notes that any consequences, in terms of prejudice or hardship, to the applicant in the event of a finding which is adverse to the applicant are not a relevant consideration for the purposes of determining this application.[56]  The Tribunal has not taken those matters into account in determining this application.
  26. [123]
    For all the reasons set out above:
    1. (a)
      The Tribunal is not satisfied that the applicant’s case is an ‘exceptional case’ within the meaning of s 225(2) of the WWC Act; and
    2. (b)
      It is appropriate that the Tribunal orders that the decision of the respondent that the applicant’s case is not an ‘exceptional case’ within the meaning of s 225(2) of the WWC Act is confirmed.

Non-publication

  1. [124]
    The Tribunal may, on the application of a party to the proceeding or on its own initiative, make an order prohibiting the publication of certain information or evidence if such an order is necessary, relevantly, in the interests of justice.[57]
  2. [125]
    A child-related employment review is required to be held in private.[58] This is consistent with the sensitive nature of information often considered in such hearings and the overriding principle that the welfare and best interests of a child are paramount.[59]
  3. [126]
    In the circumstances, the Tribunal considers that it is appropriate for orders to be made that publication of the name or identifying information of the applicant, or any person associated with him, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the QCAT Act.
  4. [127]
    Accordingly, these reasons are to be published in a de-identified format.

Relevant Human Rights

  1. [128]
    In conducting this review, the Tribunal has:
    1. (a)
      interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights;[60]
    2. (b)
      acted and made a decision in a way that is compatible with human rights;[61] and
    3. (c)
      in making a decision, given proper consideration to relevant human rights that may be affected by the decision and considered whether the decision would be compatible with human rights.[62]
  2. [129]
    Human rights which may be affected by this child-related employment decision made under the WWC Act relevantly include:
    1. (a)
      the human rights of the applicant to ‘privacy and reputation’,[63] ‘to take part in public life’;[64] and
    2. (b)
      the human right of every child to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’.[65]
  3. [130]
    The Tribunal is satisfied that the Tribunal’s decision will nevertheless be compatible with human rights because it is reasonable and justifiable having regard to the matters set out in s 13(2) of the HRA. In particular, the decision will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children, which is itself a human right.[66] Further, any limitation on the applicant’s human rights is consistent with the object, purpose and paramount principle of the WWC Act, that is, the welfare and best interests of children are paramount.

Orders

  1. [131]
    Accordingly, the Tribunal makes the following orders:
  1. The decision of the Director-General, Department of Justice and Attorney-General that BW’s case is not exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Publication of the name or identifying information of BW or any person associated with him, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. Accordingly, these reasons are published in a de-identified format.

Footnotes

[1]  Pursuant to ss 580(1) and (2) WWC Act (the transitional provisions), the Tribunal is required to apply the WWC Act, as amended, in relation to the review.

[2]  WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[3]  WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[4]  WWC Act, sch 7 (definition of ‘disqualifying offence’); s 16.

[5]  WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[6]  WWC Act, s 225(2).

[7]  WWC Act, sch 7 (definition of ‘disqualified person’); s 17.

[8]  WWC Act, s 354(1).

[9]  WWC Act, s 353 (definitions of ‘prescribed period’ and ‘chapter 8 reviewable decision’).

[10]  WWC Act, s 354(1).

[11]  WWC Act, s 353 (definition of ‘chapter 8 reviewable decision’); s 354.

[12]  QCAT Act, s 19(a).

[13]  QCAT Act, s 19(c).

[14]  QCAT Act, s 20(1).

[15]  QCAT Act, s 20(2).

[16]  QCAT Act, s 21.

[17]  WWC Act, s 225(1)(b); sch 7 (definition of ‘serious offence’); s 15.

[18]  WWC Act, s 225(2).

[19]  WWC Act, s 225(2).

[20] Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27, [46].

[21] Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27, [47].

[22] Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25, [36], citing with approval Drinkwater v Commissioner for Children and Young People and Child Guardian [2010] QCAT 293, [19]; Stitt v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 257, [37].

[23] Minister for Immigration & Ethnic Affairs v Gungor [1982] FCA 99; Jackson v Commissioner for Children and Young People and Child Guardian [2014] QCAT 186, [23], [24].

[24] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].

[25] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]; see also Re FAA [2006] QCST 15, [22].

[26]  WWC Act, s 5(b).

[27] Commission for Children and Young People Bill 2000, Explanatory Notes, [10].

[28] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[29]  [2008] WASCA 171, [109].

[30] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [28].

[31] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[8].

[32] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[8].

[33] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[8].

[34] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing with authority the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

[35] Commissioner for Young People v Storrs [2011] QCATA 28, [17].

[36]  WWC Act, sch 7 (definition of ‘child-related employment decision’); s 358.

[37]  WWC Act, s 360.

[38] SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252, [109].

[39]  HRA, s 48.

[40]  HRA, s 58(2).

[41]  HRA, s 58(1).

[42]  HRA, s 58(5).

[43]  HRA, s 8, s 13.

[44]  WWC Act, sch 7 (definitions of ‘charge’ and ‘criminal history’).

[45]  WWC Act, sch 7 (definition of ‘conviction’).

[46]  WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[47]  WWC Act, sch 7 (definition of ‘serious offence’); s 15.

[48]  WWC Act, sch 7 (definition of ‘disqualifying offence’); s 16.

[49] CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [67].

[50]  [2013] QCATA 303, [6]- [7].

[51]  WWC Act, s 360. 

[52] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109] (Buss J).

[53] Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289, [33]; Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109] (Buss J).

[54]  WWC Act, sch 7 (definition of ‘serious offence’); s 15. WWC Act, sch 7 (definition of ‘disqualifying offence’); s 16. 

[55] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[56] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[57]  QCAT Act, ss 66(1), (2) and (3).

[58]  WWC Act, s 361(1).

[59]  WWC Act, s 360.

[60]  HRA, s 48.

[61]  HRA, s 58(1).

[62]  HRA, s 58(5).

[63]  HRA, s 25.

[64]  HRA, s 23.

[65]  HRA, s 26(2).

[66]  HRA, s 13(2)(b).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 158

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    12 Apr 2021

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.