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RWH v Director-General, Department of Justice and Attorney-General[2021] QCAT 407

RWH v Director-General, Department of Justice and Attorney-General[2021] QCAT 407

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

RWH v Director-General, Department of Justice and Attorney-General [2021] QCAT 407

PARTIES:

RWH

(applicant)

 

v

 

Director-General, department of justice and attorney-General

(respondent)

APPLICATION NO/S:

CML412-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

26 November 2021

HEARING DATE:

12 November 2021

HEARD AT:

Caloundra

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. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of:
    1. (a)
      the contents of a document or thing filed in or produced by the Tribunal;
    2. (b)
      evidence given before the Tribunal; and
    3. (c)
      any order made or reasons given by the Tribunal is prohibited to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or non-party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.

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 – where applicant has a criminal history without any serious or disqualifying offences – where the charged offences involved break and enter – drug possession, drug supply – where medicinal marijuana prescribed for the applicant – 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 19, s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, 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 FGC [2011] QCATA 291

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

Kent v Wilson [2000] VSC 98

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Ms C Davis

REASONS FOR DECISION

Background

  1. [1]
    The Applicant applied for a review of a reviewable decision by the Director-General (the chief executive officer), Department of Justice and Attorney-General (‘the Respondent’) that the case of RWH (‘the Applicant’) was 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 was invited to and provided the Respondent with both oral and written submissions and references concerning the proposed issue by the Respondent of a negative notice.
  3. [3]
    The Applicant was advised by letter dated 16 September 2020 that his eligibility to hold a blue card had been assessed and that the Respondent had issued him a negative notice under the WWC Act.
  4. [4]
    The Applicant was provided with written notice of this decision, reasons for the decision and the relevant review information.
  5. [5]
    On 7 October 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. [6]
    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) (“QCAT Act”).
  2. [7]
    The purpose of the review by this Tribunal is to produce the correct and preferable decision.[1]
  3. [8]
    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. [2]
  4. [9]
    The welfare and best interests of children is paramount.[3] The WWC Act must be administered in accordance with this principle. The Tribunal must apply the paramount principle in its review of the Decision as to whether a finding of exceptional case is justified.
  5. [10]
    Section 221 of the WWC Act provides for the issue of a positive notice except where the chief executive finds an exceptional case applies. The decision under review is whether an exceptional case exists such that the presumption under section 221 of the WWC Act is rebutted.
  6. [11]
    To issue a negative notice to the Applicant, the Tribunal must also be satisfied on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an exceptional case exists in which it would harm the best interests of children for a positive notice to be issued.[4]
  7. [12]
    The primary consideration in child-related applications is whether an exceptional case exists. The legislation does not define, ‘exceptional case’. It is a matter which should be determined on an individual case basis not hampered by a general rule.[5] Generally the term has been found by the Courts to mean “unusual, special, out of the ordinary”.[6]
  8. [13]
    In reaching a decision, the Tribunal must also consider the mandatory considerations under section 226 of the WWC Act in addition to the paramount principle under sections 360 and 6 (a) of the WWC Act and any other relevant factors.
  9. [14]
    It has been long established that any hardship or prejudice suffered by the Applicant due to the determination is not relevant to the finding of an exceptional case. [7] This is based upon the paramountcy of the best interests of children which must prevail over all other considerations.

Criminal History and Circumstances of the Offending

Whether the Offence is a serious and whether it is a disqualifying offence

  1. [15]
    The Applicant is not charged or convicted with any serious or disqualifying offences but the Tribunal is required to consider all offences in the criminal history in determining if a person meets the eligibility criteria to work with children in regulated employment.
  2. [16]
    Section 226 of the WWC Act requires the Tribunal to consider the following mandatory matters in determining if an exceptional case exists.

Whether it is a conviction or charge

  1. [17]
    There are three charges in the history. The offences include charges for three enter premises and commit indictable offence by break on 13 July 2005. The offences are alleged to have occurred on 22 March, 25 March and 30 March 2005. No evidence was provided, and the Applicant denies the charges.
  2. [18]
    The Applicant was charged and convicted of twenty-two offences.[8]

When the Offence was committed

  1. [19]
    The Applicant aged 19 was charged with 7 offences of breaking and entering and committing an indictable offence. The Applicant broke into a school at night and stole several computer hard drives on 11 January 2005, 20 January 2005 and 24 January 2005. During the investigation, the Applicant subsequently advised police that he had computers at his address that he believed were stolen and that he had purchased them from an unknown person. Another person indicated to police that the Applicant had provided a computer to him on 24 January 2005.
  2. [20]
    The Applicant aged 19 was also convicted of possessing by night an instrument of house breaking and possession of a knife in a public place on 3 April 2005. All matters were dealt with in the District Court on 10 April 2006.
  3. [21]
    The Applicant aged 19 years broke into a vehicle and stole a camera, camera tripod, microphone, lamp and personalised number plate between 17 January 2005 and 19 January 2005.
  4. [22]
    The Applicant aged 19 stole 4 compressors, one pump, one compressor bag, one compressor hose, one light, one exhaust jack from a four-wheel drive store on 22 March 2005. He was apprehended because of his fingerprints being left at the scene for which he had no explanation. He was later charged for these offences.
  5. [23]
    The Applicant aged 22 was convicted at E town on 20 February 2008 of possession of dangerous drugs, utensils or pipes used. He was fined $300. No conviction was recorded in default imprisonment. He was ordered to be of good behaviour for four months and ordered to undertake a drug diversion course.
  6. [24]
    The Applicant aged 22 was convicted at R town on 11 November 2008 of possessing dangerous drugs, utensils or pipes (used) and fined $600. A conviction was recorded.
  7. [25]
    The Applicant aged 22 was convicted at Brisbane 20 November 2008 of a Breach of a Suspended Sentence and was ordered to serve part of suspended sentence (6 months) with immediate release on parole.
  8. [26]
    The Applicant aged 23 was convicted at R town on 28 July 2009 of 9 counts possession of dangerous drugs and Possessing utensils or pipes used and possessing anything used in the commission of a crime. A conviction was recorded and a fine of $500 was imposed.
  9. [27]
     The Applicant aged 24 was convicted at R town 11 May 2010 of 6 counts of Supply dangerous drugs, possess anything used in the commission of a crime. A conviction was recorded and a fine of $500 was imposed.
  10. [28]
    The Applicant aged 24 was convicted at R town 11 May 2010 of 9 counts of Possess dangerous drugs, (9) Possess dangerous drugs. Drug diversion ordered; no conviction recorded. Recognisance of $150 was ordered.
  11. [29]
    The Applicant aged 30 was convicted at R town 31 August 2016 of (9) counts of Possess dangerous drugs and Possess utensils or pipes used, possess property suspected of being used in connection with the commission of a drug offence. No conviction was recorded, and the Applicant was fined $450.
  12. [30]
    The offending behaviour occurred when the Applicant was aged between 19 and 30 years of age. It does not appear that the Applicant was concerned that he was subject to scrutiny of police investigations which involved them attending at his home when other persons were present; that police obtained a search warrant for his property; that his offending on 22 March 2005 was detected by the identification of him by his fingerprints. He continued to commit drug and property-related offences to fund his desire for drugs. Neither the attention of police nor having a significant criminal record acted as a deterrent for him. The penalties imposed by the Court were treated with disdain such that he breached his Community Service Order and suspended sentence. He narrowly escaped serving a term of imprisonment when sentenced in the Brisbane District Court on 20 November 2008 for penalties imposed on 6 November 2006 and 11 November 2008.

The Applicant contends that the offences were committed long ago apart from the offence in 2016 and that he has reformed but Tribunal has decided in other cases that the passage of time alone does not reduce the significance of offending relevant to the Tribunal’s decision and so does not necessarily negate the existence of an exceptional case. The Tribunal therefore gives significant weight to the Applicant’s criminal history due to the length of time that the offending behaviour persisted. The Applicant showed no respect for the law or by law enforcement’s efforts to maintain a safe community for everyone including children.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children.

  1. [31]
    The offences did not involve children per se. The pattern of offending and repetitive nature of the offending raises questions about the judgment of the Applicant when using or attempting to source illegal drugs. His generally casual attitude to lawbreaking and disregard of penalties imposed, makes a poor role model for children.
  2. [32]
    The break and enter and theft of computer hard drives from X school on the 11 January 2005, 20 January 2005 and 24 January 2005 specifically relates to circumstances that directly impact children. The offences were committed in the long school holiday period, at night and involved smashing a window and entering through an unlocked door. The Applicant targeted the school property and came prepared with a police scanner, a torch, and latex gloves. The victims of these offences were primary school children. Given the series of attacks upon their school, it is reasonable to assume that news of these offences would cause considerable trauma to the child victims. The passage of time does not necessarily remove the trauma felt by the victims. The actions of the Applicant can not be undone simply because time has passed.
  3. [33]
    The Applicant described a recent event involving his teenage niece in which he explained his history of drug-related offending to her and the impact it had on his life including financially, health-wise and to his reputation. He counselled her not to repeat his mistakes.
  4. [34]
    Children are heavily influenced by the adults in their lives for whom they should have respect and trust. Adults are expected to be able to regulate their behaviour and provide care and a protective environment for children. It is generally accepted that it is confusing and harmful for children to be given conflicting messages about serious matters such as drug use and breaking the law. An adult’s tacit approval of drug use by their example may have the effect of normalising this conduct in the child’s impressionable mind.
  5. [35]
    The Applicant described a practice of having multiple locked doors (internal and external) and security cameras as commonplace in a home where a child resided from time to time. The reason for this unusual practice is not explained by the Applicant.
  6. [36]
    The Applicant stated that his protective measures for children involved the removal of drugs and drug paraphernalia from the property or parts of the property where a child may be exposed to these items. He subsequently admitted having forgotten the location of some of the drugs raising the question of the appropriateness of these strategies as protective measures.

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 decision.

  1. [37]
    The Applicant’s behaviour shows little regard for the imposed penalties. Penalties include several opportunities given by the Court for leniency.
  2. [38]
    On 10 April 2006, as it was the Applicant’s first time before the Court, the Court did not record a conviction but made a Community Service Order and ordered compensation. The Magistrate stated that

I will not record a conviction against you. So you are being given some leeway today since it is your first occasion before the Court and since you are making compensation. Do not muck it up. Yes?

  1. [39]
    On the 20 November 2008, the Applicant breached the Community Service Order and reoffended. His Honour Judge Newton showed him leniency stating that it would be unjust to activate the whole of the period of imprisonment and instead activated part of the sentence, a period of six months, to be concluded at the same time as the hearing on 20 November 2008. A fine was imposed. His honour stated:

You have your whole life ahead of you, you’re a young man, a good work record despite the [problems you face with your back and anxiety disorder]. There’s no reason why you don’t go and make something of yourself and put all this nonsense behind you.

  1. [40]
    Between the 20 November 2008 and 31 August 2016, the Applicant was convicted on three occasions for 18 charges of possession of dangerous drugs and 9 charges of supply of dangerous drugs and related offences. He was fined and ordered to attend drug diversion.
  2. [41]
    On 31 August 2016, His Honour, Magistrate Tonkin stated as follows:

Look I accept the medical evidence, the research shows that cannabis is valuable in pain control and in other conditions as well, but until the parliament is persuaded of that, everyone has to find their bigger pain medication lawfully using other sometimes less satisfactory methods. ……

You were very co-operative. It is a long time since your last offending and this collection of offences, whilst three offences, nevertheless, it all relates to the same instance. So, you are convicted and fined $450. I order that it be referred to SPER if you haven’t paid within two months and a conviction recorded.

  1. [42]
    The Applicant was again shown leniency by the Court and an acceptance in part, of his argument concerning the use of drugs in connection with his health concerns.

Any information about the person given under sections 226(e), 318, 319, 335, 337, 338 of the WWC Act and under section 138 ZG of the Disability Service Act (Qld) 2006

  1. [43]
    There are no reports or information available to the Tribunal under these provisions.

Other relevant Matters

  1. [44]
    Historically, the Applicant’s conduct, when interacting with police and the Court is deceptive, misleading and manipulative. It is concerning that the Applicant lied easily to police. When intercepted at the school break and enter, he stated to police that he had seen other offenders and denied he was responsible, until he was seen to be wearing gloves. Likewise in the break and enter at the Four-Wheel Drive Business, he gave an explanation as to why his fingerprints were found at the business. He persisted with this deception until the location of a particular a particular set of prints could not be explained by his lie.
  2. [45]
    The Applicant did not demonstrate any insight into his offending tending to minimise and dismiss the offending. The Applicant consistently blamed others for the offending describing them as the ‘wrong crowd’. The Applicant has indicated that he does not associate with that same group of people now.
  3. [46]
    The Applicant’s drug-related conduct includes a long history of substance misuse involving cocaine, cannabis, ecstasy. He also reported the regular use of MDMA daily and cannabis for 4-5 years until 2013. He spoke about several relapses. The triggers for drug use appear to be life stressors but he does not elaborate. He gives multiple explanations for his drug use. Regarding cannabis usage, he states that his use of this drug was for relief of back pain, to manage anxiety, manage depression and ease the symptoms of coming down off ecstasy and speed.
  4. [47]
    He displayed no insight into the purpose of the drug diversion courses. In respect of the numerous drug diversion courses he attended, he stated that it gave me information I already had. The Applicant was dismissive of the courses, and it is reasonable to conclude that he failed to take the courses seriously.
  5. [48]
    The Applicant stated that his mental health concerns were the reason for his criminal history and bad behaviour. He describes the criminal activity resulted from his need for drugs for pain relief and mental health concerns. He maintains that the cannabis-related offending was caused by his severe anxiety and depression.
  6. [49]
    The Applicant has sought the assistance of a psychologist Mr Z and continues to see his general practitioner, Dr P. Dr P provided a medication medical history but no relevant report. He was not called as a witness. Dr P provided a brief letter dated 16 July 2021 stating his opinion that:

the Applicant is a patient for 15 years. He sees a psychologist willingly and he has anxiety and depression that are well controlled.

  1. [50]
    The Applicant states that he is also prescribed medicinal Marijuana by Dr L. The Applicant indicated that the reason Dr L was not available to attend the hearing was due to the cost of this which the Applicant states is unaffordable. He stated that a report would cost $150 and that a consultation cost $120. The Tribunal accepts that the Applicant is legally prescribed medicinal marijuana by Dr L under a special access scheme as its use is not permitted except by the Scheme. Dr L was unable to be questioned by the respondent and has not provided a written report.
  2. [51]
    The Applicant states that his medication includes the prescribed medicinal marijuana and 5 milligrams of Valium which he always carries. He states that these medications are effective to reduce his anxiety and manage his mental health issues.
  3. [52]
    Other strategies to manage his anxiety include withdrawing from a situation where he is anxious and using breathing strategies.
  4. [53]
    The Applicant states that he now has his own computer business, is engaged constructively with family, and does community service with S Service. He states that the volunteer work is his passion. His psychologist states that the Applicant wants to give back to the community. Friends, family and practitioners agree that the volunteer work has been a turning point in his life. 
  5. [54]
    His psychologist states that the Applicant has stable employment in his own business and has adopted a healthy lifestyle including exercise.

Applicant’s case

  1. [55]
    The Applicant provided written submissions including a life story dated 7 January 2020. He describes growing up in the country in an intact family with one sibling. He was diagnosed with ADHD for which he was medicated until the age of 16. His father ceased work in 1998 due to an injury. He has completed year 12 and Certificate II in information technology and the partial completion of a Certificate III through TAFE Queensland.
  2. [56]
    He unsuccessfully applied to join the Navy, travelled in New Zealand to his grandparents, staying 4 months and returned to reside with his parents. He worked as a labourer for 4 years until he injured his back. His parents constructed a granny flat for him adjacent to their home but after a while, his sister moved into this when she was expecting a child. He left the granny flat.
  3. [57]
    He then fell in with bad company, committed break and enter offences and tried drugs including ecstasy, cocaine, and cannabis. In 2007, he moved to P town but recommenced the use of drugs using them for his anxiety at the suggestion of a friend. He admits smoking cannabis daily for the next 4-5 years being convicted again of possessing cannabis and for breaching his suspended sentence. He maintains that the Court showed leniency as he provided medical evidence regarding his drug use.
  4. [58]
    He freely admits being at home for 6 months on parole and using cannabis daily. He was driven to all parole appointments “as he was considered to be under the influence by law”. He then resumed contact with his friends and was charged and convicted of supplying a dangerous drug.
  5. [59]
    In 2011 he joined the S Service as a volunteer, started his own business and ceased drug use with assistance from his psychologist. He was also prescribed Valium by his general practitioner. He states that he relapsed several times to cannabis use and that his last charge was in 2016. He states that he used cannabis once in 2017 and in 2018 and only uses prescription medication since.
  6. [60]
    The Applicant stated that Dr L applied for and was granted special access for medicinal marijuana through a special access scheme. He now uses this, not illegal drugs. He has moved back in with his parents in December 2020. He is ashamed of his past actions as they have resulted in him not being able to volunteer at S Service where he has completed 500 hours of voluntary work.
  7. [61]
    The Applicant provided a further submission dated 22 May 2020. He stated that he developed a drug problem in 2004 and he says he shamefully engaged in several break and enters in Sunshine coast between 2005 and 2008 to feed his drug habit. The drugs were ecstasy and speed and the occasional cannabis “to ease the symptoms of coming down of these drugs.” He then states that he had a drug free period of 6 months in 2007 or 2008 after finding new friends. He admits continuing to use cannabis.
  8. [62]
    He states that he injured his back whilst working as a builder’s assistant, he states that he started using cannabis for pain relief from the injury. He states that he continued to use the cannabis with his doctor’s support even though he knew it was illegal. He states that he continued to work for a couple of months until the back pain became too much.
  9. [63]
    He states that in 2011 he was charged with supply of a dangerous drug (namely cannabis). He states that the situation was that he was helping a friend who was “using it for medical purposes also”. He states that the friend had a broken bone and at the time needed it to treat anxiety. The Applicant states that he did not make any money and he knew it was wrong and has not done it since then. He states that he did not associate with people under 18 (I assume this as there is a typographical error) and states that he recommended that children or teenagers not be on drugs or out late at night.
  10. [64]
    He applied to work as a volunteer with the S service in 2012. He was initially refused because of his criminal history but after submitting references his application was approved. He claims to have completed 400 hours of volunteer work. He considers this enabled him to clean up his life and stay focussed with a new group of friends. In 2012 he states that he started his own small business, and this is continuing today. It is a mobile service providing services and equipment repairs to customers.
  11. [65]
    In 2016 following the execution of search warrant at his premises Police located a small amount of cannabis and utensils in a bathroom cupboard. The Applicant says there was no evidence of him growing cannabis. He states that he accepted full responsibility for the drugs items located and consequences.
  12. [66]
    The Applicant states that he is childless; but has two nieces and a nephew that he visits and occasionally babysits them at their house and that he plays with them and helps with homework. He states that he does not discipline them as that is his sister’s role.
  13. [67]
    He states that he sees a chiropractor, Dr T to keep “his back straight” and to avoid further pain. He states that he continued with his volunteer work and provided references from family, friends and a colleague form the S Service.
  14. [68]
    He also provided a Statement of Evidence dated 6 August 2021. In response to the Risk factors identified by the Respondent are that he acknowledges his past issues with drug use, and he states that he is remorseful. He states that his drug use stems from his inability to manage his mental health issues. He states that he has now consulted specialists and has developed strategies and considers that these represent protective factors.
  15. [69]
    Regarding the continued use of cannabis, he states that he is prescribed medicinal marijuana by Dr L. He uses 2 grams of medicinal marijuana per day in accordance with the directions of his physician. He requires the medicinal marijuana to be vaporised. He is aware of the effect of vaporisation of cannabis on him. He does not drive for the recommended period of 12 hours following the use of the medicinal marijuana relying on others to transport him as required. He declines to answer the telephone following the use of medicinal marijuana. He states that he is never under the influence of cannabis or has cannabis-related paraphernalia around children, using the drugs privately.
  16. [70]
    He states that he enjoys the trust and support of this family and that he can prioritise the interests of children. He states that he now has a support network of family and friends. He states that he has meaningful work as a volunteer, where he believes he enjoys the support of his colleagues who are aware of his mental health issues.
  17. [71]
    He states that he regularly consults with his general practitioner (15 years) and his psychologist (10 years). He agreed that in the report of his general practitioner that medicinal marijuana is not listed. He states that he is alert and understands when he is about to have a panic attack. He states that he always carries medication and would remove himself from a situation and sit down and breathe.
  18. [72]
    He stated that he currently lives in a granny flat. His parents live in the house and that his sister lives nearby. He stated that he lived in P town for a time but mainly in D town in Queensland. He states that he was never homeless. He stated that he spends most of his time 10-15 hours per week with his friend Witness G. They watch movies and play X box and socialise. He said he had a period of estrangement from family in 2006-2009.
  19. [73]
    He stated that his referees include long term friends that he has known since 2002 and 2005. He stated that he had consulted his general practitioner Dr P since 2005. He stated that he consulted Mr Z since 2010 and that he had been influential in getting the Applicant out of a ‘bad crowd’. In relation to the previous associates, he stated that he occasionally chats with his ex-girlfriend from this time. He states that two witnesses know the people in this bad crowd. He described joining up with these friends in ‘hot cars to do laps’.
  20. [74]
    He stated that the only new people in his life are Mr Z and his referee Witness F from the S Service.
  21. [75]
    The Applicant described the children in his life as being the 9-year-old daughter of his friend Witness D. He stated that he had known her since she was born. The friend with whom he shared a house had a daughter now 13-14 who stayed with her father at his house each week and alternate weekends. He stated that he has regular contact with his nieces and nephew, the children of his sister. They are aged 13, 12 and 2. He sees these children at his parents’, his sister’s, or his own house. The visits occur about once or twice a month. There are no other children in his life.
  22. [76]
    He described the measures he takes to protect children from drugs by not have drugs near them, won’t be with them if under the influence and that he advises children against drugs. He gave the example of his eldest nieces leaving the house at 1.30am to walk along a deserted road near home to meet her boyfriend to share a “bong with her boyfriend”. He stated that he told his niece that, “weed is bad idea”; that she was too young to smoke. He stated that he told her that he had lost money, had fines, lost friends because of drug use. He stated that his sister, the girl’s mother was aware of this conversation and approved.
  23. [77]
    He stated in cross examination that he committed the break and enters to get money for drugs and that he had failed to manage his mental health. He commented that he was young and stupid. Regarding the conviction for supply of cannabis, he stated that he had done this to help out a friend who was in pain. He said it was a poor decision and that he would never do it again. He stated that it was stupid because it was illegal, and he got fined. He stated that he regretted the past illegal activity. He stated that he had never grown cannabis in his life.
  24. [78]
    He stated that the strategies he used now were breathing, yoga, and taking 10-15 minutes to compose himself and using prescribed medications. He stated that the prescriptions medications in the past had made him lethargic not like a couple of cones which he smoked to lower his anxiety levels. He stated that he did not get high. He agreed that he used weed to help him come down after using speed. He described the symptoms of this as feeling sick and that in the past he would “take whatever drugs were around”.
  25. [79]
    He stated that he now uses Valium and medicinal cannabis all the time. He stated that he has had an increase in anxiety since the issue of the negative notice, though not for six weeks. He stated that he has lots of support now and that the current medications lower his anxiety in the moment, but he has no effects the next day.
  26. [80]
    He stated that he saw his psychologist 4-5 times a year. He stated that it was an ‘on and off’ arrangement.
  27. [81]
    He stated that he would use drugs whenever a friend stopped by in the past in private. He stated that he ceased using drugs apart from cannabis in 2013 and cannabis in 2016. He states that his supports include phone calls and dinner with family at home. Though he admits relapses he is not going to full time use again and that it resulted from peer pressure and social pressure.
  28. [82]
    He stated that because he has prescription medications including Valium that he has no need for illegal cannabis. He stated that his last illegal use was three years ago. And that he had not used illegal drugs since.
  29. [83]
    He stated that he attended the drug diversion courses but that they were not beneficial. He stated that he learned that smoking cannabis with tobacco in it was not good. He admitted stealing from a school during his criminal offending.
  30. [84]
    He also stated that now he had no back pain as his back “was good”. He sees a chiropractor.

Cross examination regarding Criminal offending  

  1. [85]
    He stated that the offences in P town were the result of a complaint by a boyfriend of his ex-partner who complained to police. He stated that the Offences involving possession and possession of utensils in June 2009 were for personal use. He stated that he did not keep cannabis in the house.
  2. [86]
    Regarding the 2010 offence, he stated that the drug was his sisters. He stated that he could tell from the smell what the drug was. He did not know where it came from but that it was a speed-based tablet. He stated that he told police it was his. Regarding the charge of supplying a dangerous drug he disputed the police record as “he has helped a few mates a lot with drugs,” and had supplied drugs previously. He stated that he had not supplied drugs since.
  3. [87]
    Regarding the 2005 offences, he stated that he pleaded guilty and that he had lied and misled police and the security guard in relation to his actions. He confirmed that he had broken into the motor vehicle in 2005 and stolen items. He stated that he felt bad about the criminal conduct and lying and misleading police.
  4. [88]
    Regarding the offence of possession of a knife, he admitted that he lied to police when questioned. He had stated that the knife was for protection. He agreed that he also had metal tools and gloves to commit a break and enter.
  5. [89]
    He stated that he breached the community service order because he was unable to attend as he was working. He stated that he needs the medication to deal with severe mental health symptoms, which were severe in June 2021 and that he had been undergoing treatment to manage his mental health symptoms for ten years.
  6. [90]
    He stated that he agreed that adults should protect children and that generally no children were around him. He stated that the drugs were kept in a variety of locations including in the yard and in locked rooms. He agreed that it could present a risk to children if he forgot where drugs were concealed by him. He agreed that stealing from a school prioritized his interests over those of children and that he was prepared to cross boundaries. He stated though that this was 15 years ago.
  7. [91]
    He agreed that he took steps to obtain medicinal marijuana after receiving the negative notice. He states that he does not drive for 12 hours after the use of the drug nor does he attend callouts. He stated that he can take the 5 milligrams of Valium and drive safely.
  8. [92]
    He stated that all his witnesses had seen the Statement of Reasons and know of his criminal history and that they all know he used speed, cocaine and MDMA daily in the past.
  9. [93]
    In relation to the 2016 offence, he stated that he shared a house with his friend Witness B and his daughter at the time. He states that he removed all drugs and drug utensils from the house when she visited.
  10. [94]
    He states that he has actively counselled and still counsels his nieces on the dangers of drug use particularly when very young.
  11. [95]
    He states that he is actively employed and has a computer business.
  12. [96]
    He states that he has a support network of long-term friends and family and colleagues from the S Service. He does not associate with friends with whom he was involved in criminal offending.

Witness A

She said that the Applicant was diagnosed as having ADHD as a child and was prescribed dexamphetamine in 1998 at age 13. She stated that she believed he used cannabis as a “way to relax”. She stated that he had been influenced by a bad crowd when younger. She stated that the Applicant was concerned currently about the damage to his reputation by the issue of a negative notice because people assumed it was to do with him being a danger to children. She stated that he had family support and that the S Service involvement had been a turning point for him. She stated that she had never known him to drive for 12 hours after use of the medicinal marijuana. She is always there to support him and had helped him to see a Doctor and psychologist to get help. She stated that he was committed to his voluntary work and that this aided his battle with depression and anxiety.

  1. [97]
    Witness B

He stated that he had shared a house with the Applicant a few years ago. They lived together for 6 years. His daughter was five at the time. He stated the Applicant respected his wish that there be no drugs around the child and went elsewhere to use pot ceasing use in 2015-2016. He stated that his daughter did not ask about drug use. He believed his daughter was not aware of the Applicant’s use of drugs. He stated that he was not a big fan of pot himself. He said that when the Applicant was on pot and prescription drugs his anxiety would build up. He stated that the Applicant was always able to function. His impression was that the Applicant would adjust his life so the drug-use went unnoticed. He stated that the Applicant was courteous and caring to others. When asked in cross examination if he was aware of drug use by the Applicant in the home, he responded that, “Yes a bit” he would be drowsy and “you could smell it a bit”. He stated that he did not know, “where in the house” it was consumed. He stated that on these occasions his daughter was not staying at the house. His daughter was at the house every second Wednesday and Thursday and every second weekend. He stated that he was a Jehovah’s Witness, so drugs were not part of his world. He stated that in 2016 the drugs found by Police were found in the bathroom but that he had a separate bathroom from the Applicant. He stated that the Applicant had security cameras and locks on the front door, locks on outdoors and downstairs, his room, the laundry, the outdoor, bottom room and backdoor.

Witness D

  1. [98]
    This witness stated that the Applicant is familiar with his daughter whom he has known for his whole life. She is aged 9 ½ now. He stated that she spends forty percent of time with him and that the Applicant comes over and they watch movies and work on cars. He stated that he has never seen the Applicant when he was unfit to be around a child. He stated that his (the Applicant’s) actions have not been the best but that he is, “not bad around kids.”

Witness E

Witness E stated that she never observed the Applicant to take drugs in front of her children or be in their presence when he was under the influence of drugs. She stated that she never knew him to smoke cannabis such that he was unable to control his actions. She stated that as at the date of her statement 4 August 2021 that he still smoked occasionally when he had bad anxiety. She drew a link between his use of cannabis and stated that had medicinal cannabis been legal earlier, I am sure the Applicant would have stopped breaking the law a lot sooner”. This witness stated that she had seen an enormous improvement in the Applicant since he was engaged in his voluntary work. She said he was more positive, involved with family and friends and has his own business. She stated that he collected her children from school and that she would visit unannounced and that there would not be any drug paraphernalia there. She stated that he makes periodic visits to her workplace and that he is always professional, punctual, and not affected by drugs. She stated that she knew about his drug history. She stated she believed he occasionally used ecstasy and smoked marijuana to relieve his anxiety and depression but that he had not used ecstasy since 2009. She stated that she knew he had broken into a school and that the school was affected. She stated that he had no other break and enter offences to her knowledge and that it had impacted the family. She stated that that the Applicant had lived with her and her daughter for a time but that his mother had been a main support. This witness stated that she trusted the Applicant around her three children. She was aware of a recent incident where her teenage daughter had left the house at 1.30am to meet her boyfriend and smoke drugs. When questioned about this, she stated that she was aware that the Applicant had spoken to her teenage daughter sharing his personal drug experience with her and had, counselled the daughter about drug use when she was too young. The witness stated that she gave permission for the conversation and did not regard it as normalising drug use. She stated that “we are not like that”. She stated there had been a vast change in his behaviour.

The Psychologist Mr Z

Mr Z is a psychologist of 23 years standing. He provided a written report to the Tribunal dated 16 June 2021 and gave oral evidence at the hearing. He stated that he last saw the Applicant on 16 June 2021. He does not state the number of consultations had with the Applicant or the diagnosis. He stated that the Applicant was referred to him by the Applicant’s general practitioner, Dr P under a mental health plan.

He states that his testing (DASS Depression Anxiety Stress Scale) on 16 June 2021 (the last time reported consultation) resulted in a finding that the Applicant suffers from severe anxiety, moderate depression, and severe stress. Mr Z stated that the Applicant’s mental health is significantly affected by the BlueCard negative notice which caused him to lose his right to volunteer with the B Service.

The witness in his written report refers to the fact that the Applicant, “makes the point,” that he has no need to use illicit drugs as he uses medical marijuana ‘which greatly assists with reducing the symptoms of his anxiety and depression.

This witness did not confirm any awareness concerning the prescription and use of medicinal marijuana by the Applicant in his oral testimony.

There was no cross examination of this witness by the Respondent.

Witness F

  1. [99]
    He stated that he had known the Applicant for 11 years as a friend and colleague in the S service. The Applicant was a volunteer. He stated that the Applicant never drove in the course of the voluntary work. He held no concerns about the Applicant being able to perform the required duties. He stated that he, “only flicked through the Reasons for Decision,” but was aware the hearing concerned the fact that the Applicant had been, “knocked back for a BlueCard”. He stated that he had never seen the Applicant under the influence of a drug. He stated that the BlueCard was required as, at times, the S Service attends schools.

Witness G

  1. [100]
    This witness states that he is a colleague in S service. This Service involves attendance at weekly training and meetings and callouts. He is aware that the Applicant wont drive or attend his job if under the influence. He stated that he had seen the Applicant become anxious a few times. His expression will change but he stays with the task. He stated that on a few occasions the Applicant had declined to attend. He stated that he thought the applicant’s interaction with children was normal. He stated that the support given to the Applicant includes phone calls and visits. The witness cites the support of family as a consistent feature in his life residing close by with family. He has observed him to be is close with his sibling and nieces and nephew.

Summary of Applicant’s Case

  1. [101]
    The Applicant states that he is seeking a BlueCard as it is required for the organisation he is working for as a volunteer. He also states that he understands that the issue of a BlueCard entitles the holder to work in any child- related employment.
  2. [102]
    He self-discloses a ten-year long struggle with pain resulting from a back injury, as well as mental health concerns, anxiety and depression. He states that he has actively pursued treatment for his illnesses, including the use of legal prescription drugs, which in his view were ineffective, and the use of medicinal marijuana. The Applicant states his belief that he does not use drugs to get “high”. He states it is for the purpose of relaxation and never in front of or involving children. The Applicant states his belief that he does not require illegal marijuana for the purposes he has described as he uses medical marijuana which is prescribed legally for him.
  3. [103]
    The Applicant states that he has completed four drug diversion programs commencing 2008.
  4. [104]
    He has engaged with several health practitioners which include Dr P, a general practitioner who has consulted for fifteen years and a psychologist Mr Z whom has consulted for ten years and Dr L who prescribes him medicinal marijuana.
  1. [105]
    The Applicant states that he now has a strong support network and engagement with family. He provided 6-character references and one medical report. The Applicant cites the support of family as a consistent feature in his life and described interventions made by family on his behalf to enable him to join his current organisation and the fact that he resides close by with family. He is close with his sibling and nieces and nephew.
  1. [106]
    The Applicant maintains his appreciation of the wrongdoing of his criminal actions and the impact of this on his desire to continue volunteering in S Service. He states that volunteering there has turned his life around and is described as his “passion”.
  2. [107]
    The Applicant states that he has increased awareness and insight and is unlikely to reoffend as he is not in contact with the same group of people who were a negative influence on him.
  3. [108]
    The Applicant identifies what he regards as the protective factors which the Tribunal ought to consider in this review. These include his extreme remorse that he has lost the opportunity for volunteer work which assisted him to become more stable and able to contribute, promoting feelings of well-being. He cites his changed circumstances; having his own business; the passage of time; development of personal interests and family relationships and dealing with his mental health concerns in a lawful way and discontinuing his old destructive acquaintances.
  4. [109]
    The Applicant states, regarding the mandatory considerations of the offending, that he acknowledges his offending and the fact of his “shameful” criminal history.

The Respondent’s Evidence

  1. [110]
    The Respondent submits that the material discloses longstanding and extensive misuse of substances; the most recent offence having occurred in 2016. The Applicant’s misuse of drugs and triggers for it represent a risk factor.
  2. [111]
    The Respondent refers to the Applicants use of,

cocktails of drugs including cocaine, cannabis, ecstasy commencing in 2004 until 2016 when he was most recently convicted of a drug possession and possession of drug utensils (used) and property suspected of having been used in the commission of a drug offence.

  1. [112]
    The Applicant admits regular drug use over an extended time. He admits he took speed daily. The Respondent notes the Applicant advised that he smoked cannabis for 4-5 years admitting several relapses.
  2. [113]
    The Respondent expresses concerns as to the triggers for the drug taking included the relief of pain but also if he was “having a rough time “or if there was “nothing else going on for him” and to ease “coming down off ecstasy and speed.” The Respondent contends that in the ten years of treatment which included his use of illegal substances that the Applicant has been unable to address his triggers for offending.
  3. [114]
    The Respondent also states that the Applicant indicated in March 2020 in oral submissions to the Respondent that he would use cannabis again “perhaps at a party”.
  4. [115]
    The Applicant has diagnosed mental health concerns which for a significant time he has self-medicated. His attempts to manage these concerns involved periodic visits to his to a psychologist. The Respondent also submits that it is insufficient for the Applicant to show that he has attended counselling but rather that there must be evidence to support a finding of a reduction of risk.
  5. [116]
    The Respondent notes that the Applicant has not produced any evidence to support his claim that he can effectively manage his mental health. The Respondent notes that the Applicant claims he has strategies to manage a panic attack. This involves breathing and removing himself from a situation. The Respondent states that these techniques are not appropriate strategies when one has care and control of children.
  6. [117]
    The Respondent states that the submission that the Applicant is now prescribed medicinal marijuana is not supported by any independent evidence from Dr L or Dr P. Mr Z also makes no reference to medicinal cannabis or any opinion to support the claims of the Applicant. The Respondent states that the Applicant’s offending and drug use show a lack of judgement and insight in acting as a positive role model for children and young people and any insight into the gravity of his offending. The Respondent expresses concern about the capacity of the Applicant to sustain positive change and improved health and well-being in the longer term.
  7. [118]
    The Respondent’s submissions state that the Applicant does not display appropriate insight or awareness into his personal drug use and the potential for harm to children cared for by a person who is under the influence of drugs. The Respondent cites the failure of the Applicant to appreciate the seriousness of his behaviour, the need to address his behaviour, as reflecting poorly on his insight.
  8. [119]
    The Respondent submits the Applicant minimises the circumstances of the offending, he states that it was only a “little cannabis”; that he was “helping out a friend because that a what we do help each other”; that he had forgotten about the cannabis in 2016 found by police search in the home he shared with a child.
  9. [120]
    The Respondent states that the Applicant shows little regard for his property-related offending, blaming it on a poor choice of friends and that it was a long time ago. The Respondent remains concerned that the Applicant offers no explanation of these events demonstrating a complete lack of insight into his conduct when motivated by a need to satisfy his requirements for drugs.
  10. [121]
    The Respondent also submits that the Applicant only sought lawful means to address his need to relieve his symptoms with drugs when his right to volunteer was threatened.
  11. [122]
    The Respondent submits that the family, friends, and practitioners do not support the Applicant’s claim that he has a support network who will assist him to prevent reoffence. The Respondent claims that the Applicant’s character witnesses do not have meaningful knowledge of his criminal history.
  12. [123]
    The Respondent refers to the fact of the transferability of the blue card so that it cannot be made subject to conditions. This means that if the Applicant were issued with a positive notice, he could potentially work unsupervised in child related areas of employment.
  13. [124]
    The Respondent states that the role of the Respondent is not to impose further punishment upon the Applicant, but to determine whether it is in the best interests of children for the Applicant to be given unsupervised access to work with or interact with children in activity regulated under the Act should he receive a BlueCard.
  14. [125]
    The Respondent holds concerns about the ability of the Applicant to act protectively towards children. This is because of his history and the unreliability of his judgment and assessment of risk evidenced by the way he lied to and misled police in various inquiries related to his offending.
  15. [126]
    The Respondent submits that the reports of Mr Z do not address the strategies the Applicant has in place to prevent relapse and future offending.
  16. [127]
    The Respondent contends that there is limited evidence to support the claim that the Applicant is rehabilitated such that he can both accept responsibility for his offending and can abstain from misuse of drugs going forward. The Respondent contends that this issue has not been adequately tested nor rehabilitation proved.

Consideration of the Evidence

  1. [128]
    The Applicant’s witnesses were not adequately informed of the detail of his offending and the impact of this upon the deliberations today. Witness A showed genuine support for the Applicant over an extended period and affirmed that although he used medicinal cannabis, he never drove under the influence. She stated that he was very committed to his volunteer work and that this fact in the Tribunal’s view is protective.
  2. [129]
    Witness B had observed the Applicant under the influence of cannabis and stated he was drowsy and that he could smell the drug. He could not identify where in the house the Applicant used the drug.
  1. [130]
    Witness B shared a house with the Applicant for 6 years. Witness B is the parent of a female child who was aged 5 when Witness B commenced sharing the house with the Applicant. He stated that he was not a fan of pot but was impacted by the choice of the Applicant to consume drugs at the home he shared with Witness B. Witness B described the Applicant’s excessive security arrangements which were then confirmed by the Applicant. These included locked internal and external doors and outbuildings and security cameras. These arrangements concern the Tribunal from the point of view of how these measures would be perceived by a child. The Tribunal considers that the measures would be quite bewildering and frightening to a child. The Applicant gave evidence that his sister’s children and friend’s child visited from time to time. Witness B stated that his daughter aged 5 was regularly present at the house on Wednesday and Thursday and every second weekend. The Applicant stated in the hearing that although she had her own room, she preferred to sleep with her dad, Witness B. The Tribunal considers these particular security measures with numerous locked doors to be unusual and extreme. They are inconsistent with the provision of a safe and secure environment for a child.
  1. [131]
    Witness D stated that he had never seen the Applicant under the influence as did Witness F. Both witnesses A and G stated that the Applicant never drove when under the influence of the drug. Witness G stated that he had seen the Applicant affected by his mental health concerns but that he had remained on task.
  2. [132]
    All witnesses focussed on the Applicant’s wellbeing and not on what might be in the best interests of children given the transferability of a BlueCard. No one in the support group considered other options or alternatives but for the Applicant to continue his preferred path.
  3. [133]
    At no time did the Applicant consider that he should eventually become independent of his support network. There was no evidence that the support network had witnessed the Applicant attempting to abstain from drug use, so that he could participate fully without depending on others to drive him or replace him on as a volunteer.
  4. [134]
    All witnesses apparently accepted that part of their role was to support the Applicant’s preferences to continue drug use and rely on others if impaired, on an indefinite basis. The continuation of this arrangement is a serious risk factor because of the unpredictability and the unreliability of the Applicant due to his own preferences.
  5. [135]
    Such an arrangement is not workable for children who depend on the adults around them to be available and competent when a child is in their care. The protective adult cannot be simply unavailable. For this reason, the weight given to the evidence of the witnesses, though positive and supportive, is reduced.
  6. [136]
    The Tribunal must consider whether the circumstances identify a risk sufficient to warrant being satisfied that it is an exceptional case in which it would not be in the best interests of children for a positive notice to issue. The test is not simply whether the Applicant poses a threat to children or not. The threat must be an appreciable threat.
  1. [137]
    The standard of proof is that the Tribunal must be satisfied on the balance of probabilities and bearing in mind the gravity of the consequences that an exceptional case exists. The burden of proof is not borne by either party.
  1. [138]
    The Tribunal accepts the view that it is not required to balance risk and protective factors in determining if an exceptional case exists and should apply additional weight to any risk factors that are established.[9]
  2. [139]
    The Applicant has significant history of drug use including supply of a dangerous drug and property offences. The Applicant displays an absence of insight into his offending and its impact on others because he minimises the significance of the offending. For example, in relation to the offence of supply at the hearing he continued to insist that this was done to help a friend. It is this thinking on the part of the Applicant which shows a fundamental misunderstanding of the harm caused by drugs and how inappropriate it is to assert that in supplying a drug, he considers himself to be ‘helping a friend.’
  3. [140]
    At no time did the Applicant display an understanding of the broader perspective concerning the harm caused by drugs, but rather the focus was on how he had reformed and that his offending was all in the past. He appears to regard the distress and harm to others caused by the prior offending to be expunged. But the victims of these crimes, including many members of the current support network continue to live with these experiences.
  1. [141]
    The Police search by warrant at his property in 2016 directly impacted a child’s wellbeing. The Tribunal considers that Police coming to the property to execute a search warrant is not in the usual order of events and children should not be exposed to such an event.
  2. [142]
    The focus of the Applicant regarding Police conducting the search of his property was on how the Police formed the view that he was “was growing cannabis”. He states that he did not know where “they got that from.”
  3. [143]
    The Applicant displayed a concerning attitude in the hearing. He was dismissive of the details of his offending, speaking in a derisory way when questioned by the Respondent. For example, he frequently responded to questions with careless remarks such as “Yes that would be right, if that’s what it said,” when asked about his criminal history. He appeared to regard the questioning as tiresome and irrelevant and that he could not be bothered with answering.
  1. [144]
    The Tribunal found this obfuscation evidenced a lack of genuine remorse and undermined the Applicant’s contention that he was not a risk to children due to his insight and management of his health concerns. He regarded himself as never likely to re-offend.
  2. [145]
    The Applicant’s evidence shows a normalising attitude to drug use as did several of the witnesses. This counteracted his submissions that his support network would assist to prevent any re-offence. The normalisation of drug-related activity is in evidence when counselling his niece, he prefaces his remarks with the observation that she is too young to be involved with this illegal activity, not that it is illegal so should not be avoided.
  1. [146]
    Against these concerns is the assertion that his use of medicinal marijuana is an absolute bar to further offending. The Tribunal has the word of the Applicant only on this issue unsupported by any expert opinion. There has been no opportunity to consider any relevant evidence from Dr P, Dr L or Mr Z.
  1. [147]
    As well as being an illegal substance, the use of cannabis is well-documented to have the effect of impairing the judgment and capacity of the individual to provide appropriate care for others. The use of cannabis is unacceptable when the user has the care of children. That the frequent user of medicinal cannabis can provide a protective environment for children whilst under the influence of this drug is untested.
  2. [148]
    The Applicant has had no additional entries on his criminal history for four years, but The Tribunal has decided in other cases that the passage of time alone is not determinative of whether an ‘exceptional case’ exists. Although allegations or convictions may relate to offences committed several years ago, the passage of time does not detract from their seriousness.[10]
  3. [149]
    The Tribunal accepts that Mr Z’ s report was prepared with some limited knowledge of the criminal actions of the Applicant. His report evidences the continued minimisation by the Applicant of his offending which included the school break and enter offences which impacted those school children. Mr Z reports what he was told saying of these offences:

“he committed a range of minor drug offences, as well as a break and enter offence as an adolescent.”

  1. [150]
    In 2016, following a police search, the Applicant was charged and convicted of possessing dangerous drugs and possession of utensils or pipes (used) and possessing property suspected of having been used in the commission of a drug offence. Mr Z records what the Applicant told him of the event as follows: 

He openly disclosed to police that he had a small quantity of marijuana after they visited his house after a tipoff from the public a number of years ago  

  1. [151]
    The Police brief of facts describes the same event as follows:

On 11 August 2016, police executed a search warrant at the Applicant’s home. The Applicant took police to his bathroom and showed them an electric grinder on the bathroom floor and a set of white digital scales and a pair of scissors under the vanity. The Applicant said to police that the grinder was his and he used it to prepare cannabis. That the scales were his and he used them to weigh out approximately 2 grams of cannabis, so he did not smoke too much at once. He used the scissors to prepare the cannabis. A plastic container with a small amount of cannabis, a bowl with a small amount of cannabis, a ceramic bowl and jar with a small amount of cannabis and a clip seal bag containing 6.8 grams of cannabis were also located in the bathroom ….Police were also shown glass pipes used to smoke cannabis and a plate with a small amount of cannabis and…  a clip seal bag containing cannabis seeds.”

  1. [152]
    The Tribunal is concerned about such discrepancies as it undermines the opinion of Mr Z who does not have correct and complete information upon which to base his opinion.
  2. [153]
    The Tribunal accepts that Mr Z believed that the Applicant had been to some extent had been rehabilitated, having direction, employment, and a desire to serve the community. However, his mental health issues have not decreased in ten years and in response to a significant life stressor; the removal of the right to volunteer, has resulted in severe relapse of his symptomatology, evidenced by the DASS score.
  3. [154]
    Mr Z’s opinion is focussed on the needs of the Applicant and how the volunteering role assists the Applicant’s mental health and wellbeing. This is not the primary concern of this hearing. It is the wellbeing and best interests of children which must be the Tribunal’s concern. These issues diminish the weight which can be given to Mr Z’s opinion.
  4. [155]
    The Tribunal is entitled to ignore both hardship to the individual and any skills the Applicant is asserted to have in the determination of whether an exceptional case exists.[11]
  5. [156]
    The Tribunal notes the following remarks in the decision cited by the Respondent of Re TAA[12] which describes the value of insight into the harm caused by the offending as being evidence of a protective factor, 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 children.

  1. [157]
    The Applicant states that he is seeking obtain a BlueCard as it is required for a voluntary role he wishes to pursue. However, the effect of issuing the Applicant’s BlueCard is that the Applicant can work in any child related employment or conduct any child–related business regulated by the Act, not just for the purpose for which the Applicant states he seek the card. There is no power to issue a conditional card and once issued, it is fully transferable across all areas of regulated employment and business.
  2. [158]
    The Applicant satisfied the Tribunal that his current goal is genuine and that he shows some limited remorse. However, despite his positive changes and stated intentions to remain abstinent, he has not yet demonstrated that he can effectively and independently refrain from the conduct which led him to this situation. The Tribunal is cautious of concluding that because there has been no further offending that this equates to rehabilitation.

The Tribunal findings and decision

  1. [159]
    The Tribunal finds that the Applicant has a significant history of property and drug related offending impacting his capacity to hold a working with children clearance.
  2. [160]
    The Applicant does not work with children but regularly minds children and is in their company; residing previously in a house occupied by a friend and his daughter. Although the Applicant states that he understands that the Blue Card is transferable and unconditional, the Tribunal finds that he displays no insight into the considerations the Tribunal is legally obliged to make concerning the welfare of children when reviewing the Decision of the Director General.
  3. [161]
    There are claims of the Applicant having made relevant lifestyle changes and having enhanced family support, but the Tribunal is not satisfied that there is evidence to support this claim of changed circumstances. All evidence points to a pattern of unpredictable dependence by the Applicant on others with no plan for eventual independence.
  4. [162]
    The Applicant provided information to an independent report writer which is selective and misleading and so devalues the weight of this evidence in respect of these matters.
  5. [163]
    The Applicant’s has on going health concerns which affect his ability to provide consistent care and protection for children. His doctor involved in the procuring and prescribing of this treatment was not available to provide evidence supporting the efficacy of the treatment to the Tribunal. The Applicant is also using Valium on prescription. Both drugs impair capacity; to drive at the very least. The Applicant advised that he always caries the Valium on him so that he can judge and self-administer in case of for example, a panic attack. This circumstance is inconsistent with the care of children. Children require the adult caring for them to be always present and available.
  6. [164]
    Despite long term treatment the symptoms leading to the offending are not resolved. The triggers for the Applicant are not adequately identified and explained in the Report and no other independent medical assessments are provided. When the Applicant was presented with a life stressor; the potential loss of a BlueCard, his responses to this stress were measured by his psychologist as severe. He continues engagement with his general practitioner and other health professionals. Significant supports are still in place and much of his symptomology is unresolved. This appears to be complicated by the fact that generally his medical care for mental health issues is controlled by him and there is no evidence of him seeking or taking advice with any regularity. It appears that he determines his treatment. His last visit to his psychologist was in June 2021.
  7. [165]
    The Tribunal finds a consistent pattern of minimisation by him of the role of drug use in his life and its impact on others. This tendency is not consistent with changed behaviours and constitutes a risk.
  8. [166]
    The Tribunal finds no significant evidence concerning the ability of the Applicant to provide a nurturing and protective environment for children generally. His advice on the avoidance of drugs to his niece is presumptuous, considering that any training he has is in the unrelated field of Information Technology. It is very concerning that a child and a close relative is alleged to have used the very drugs in the same manner as the Applicant. This would seem to suggest clear evidence of normalising drug use. His responses to this circumstance show a lack of understanding and overestimation of his insight and understanding of children and their needs.
  9. [167]
    The Tribunal finds that the Applicant has not developed sufficient or appropriate insight into the effects on others of his drug-related activity and the decisions which flow from it.
  10. [168]
    The Tribunal finds that the remorse he expresses is mainly directed to the impact of the criminal offending and its consequences upon the Applicant. He and his support group remain focussed on how the opportunity to volunteer assists the Applicant to remain well. There is no appreciation of how his conduct and continuing need for significant medication which impairs function, does not correlate with a capacity to put the needs of children first. His health concerns dictate that he must put himself first.
  11. [169]
    The Tribunal finds that the Applicant does not have any positive interactions with children on a regular basis which is necessary to establish that he does not represent a threat to children. One child was exposed to locked doors and security cameras when she stayed regularly with the Applicant and her father. Another teenage niece engaged with the Applicant when he occasionally collected her from school; but most recently in a conversation with her about drugs. Other occasional contact with a child was when the Applicant visited his friend to play X box, watch movies and work on cars.
  12. [170]
    The Tribunal finds the details of the 2016 offences extremely concerning as the Applicant clearly had cannabis in his possession and was preparing it. This is not the type of environment to which children should be exposed. The Applicant in the hearing has stated that his medicinal cannabis must be vaporised which would require a device to do this. So, it would appear a reasonable inference that drug paraphernalia is still located at his residence, which would make it a continuing risk for children. In the Tribunal’s view, attempts to explain the differences between illegal cannabis and medicinal cannabis to children would be beyond their comprehension and inappropriate in any event.
  13. [171]
    In the Tribunal’s view this is an exceptional case as it has many factors taking it out of the ordinary course of events and circumstances. The Applicant bases his submissions on the fact that his offending occurred when he was an adolescent and keeping bad company. In his submission dated 7 January 2020, he says:

This led me down the wrong path, the new friends I had were drug addicts and soon dragged me into their life. I ended up assisting them with several break and enters, stealing items in the process.

  1. [172]
    There is a complete absence of ownership or display of insight into his own responsibility for the offending …he states that he “assisted them.”
  2. [173]
    He continues to blame his former friends, taking minimal real responsibility for the actual offending. But the police information’s shows someone who was cunning, constructed lies easily and consistently deflected blame onto others. He misled and lied to police on many occasions. These behaviours evidence disposition and are not solely the province of youth.
  3. [174]
    The Tribunal rejects the assertion that because he has access to medicinal cannabis and therefore no need to source illegal cannabis for his mental health concerns that he is a low risk of reoffence. His reasoning is a further example of an exceptional circumstance and represents flawed reasoning. The Applicant was insistent as to this connection. There is no independent evidence to support this argument and many variables affecting outcome such as length of time the medicinal cannabis has been in use, its continued availability, management of his triggers, a demonstrated improvement in mental health as pain and insomnia are now no longer issues for him, recurrence of life stressors, effective and consistent treatment other than on an ad hoc basis at the control of the Applicant.
  4. [175]
    There have been no submissions by the Applicant which demonstrate any change of attitude to law-breaking. He continues to obfuscate and minimise responsibility in his responses in the hearing and in his written and oral submissions. It is these features and the totality of the evidence which make his case exceptional.
  5. [176]
    The Respondent contends and the Tribunal agrees that regarding recidivism the best predictor of future behaviour is past behaviour. There is no basis for the Tribunal to alter the decision of the Director General.
  6. [177]
    The Tribunal having regard to the paramount principle considers it unsafe to issue a BlueCard, fully transferable in these circumstances and so confirms the decision of the Director-General, Department of Justice and Attorney-General.

Order

  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.
  1. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of:
  1. (a)
    the contents of a document or thing filed in or produced to the Tribunal.
  1. (b)
    evidence given before the Tribunal; and
  1. (c)
    any order made or reasons given by the Tribunal is prohibited to the extent that it could identify or lead to the identification of the Applicant, any family member of the Applicant, any child, or non-party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 s 20 (2).

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

[3]  Ibid, s 6(a).

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

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

[6]Kent v Wilson [2000] VSC 98.

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

[8]  At R 10.04.06; (7) of enter premises and commit indictable offences, possessing by night instrument of house breaking. Sentence 240 hours of community service, pay compensation of $3760. Possession of a knife in a public place. No conviction was recorded. 240 Hours community service cumulative.

At R 06.11.06; Breach CSO Resentenced original offence. Conviction recorded 18 months imprisonment and one month on breach of CSO. All terms of imprisonment  wholly suspended 2 years.

At E 20.02.08; possess dangerous drugs, utensils or pipes used, fine $300 NCR, default imprisonment. Good behaviour 4 months, drug diversion

At R 11.11.08; possess dangerous drugs, utensils or pipes used fine $600, conviction recorded

At Brisbane 20.11.08; Breach of suspended sentence order to serve part of suspended sentence(6 months) Immediate release on parole 

At R 28.07.09; 9 possess dangerous drugs. Possess utensils or pipes used, possess anything used in the commission of a crime Conviction recorded Fine $500

At R 11.05.10; (6) Supply dangerous drugs, possess anything used in the commission of a crime. Conviction recorded Fine $500

At R 11.05.10; (9) Possess dangerous drugs, (2) Possess dangerous drugs, Drug diversion ordered, No conviction recorded Recognisance $150

At R 31.08.16; (9) charges possess dangerous drugs. Possess utensils or pipes used, possess property suspected of being used in connection with the commission of a drug offence. No conviction recorded Fine $450.

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

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

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

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

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 407

  • Court:

    QCAT

  • Judge(s):

    Member Hemingway

  • Date:

    26 Nov 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
3 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Cite 3 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
1 citation
Jump To
Cite 1 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
1 citation
Jump To
Cite 1 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
2 citations
Jump To
Cite 1 - [2010] QCAT 243
Cite 2 - [2010] QCAT 243

Cases Citing

Case NameFull CitationFrequency
AM v Director General Department of Justice and Attorney General [2023] QCAT 61 citation
CRS v Director General Department of Justice and Attorney-General [2023] QCAT 3872 citations
GLG v Director-General, Department of Justice and Attorney-General [2025] QCAT 1392 citations
JCZ v Director-General, Department of Justice and Attorney-General [2025] QCAT 2211 citation
KLT v Director-General, Department of Justice and Attorney-General [2024] QCAT 2713 citations
LMJ v Director-General Department of Justice and Attorney-General [2024] QCAT 993 citations
1

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