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MK v Director-General, Department of Justice and Attorney General[2021] QCAT 62

MK v Director-General, Department of Justice and Attorney General[2021] QCAT 62

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

MK v Director-General, Department of Justice and Attorney General [2021] QCAT 62

PARTIES:

MK

 

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

 

(respondent)

APPLICATION NO/S:

CML278-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

23 February 2021

HEARING DATE:

22 September 2020

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that MK’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced by the decision that there is no exceptional case in respect of MK.
  2. Publication of the name or identifying information of MK or any person associated with her and in particular children for whom she has cared, 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 – convictions for drug related offences, going armed so as to cause fear, possession of a knife in a public place or a school, and relating to dishonesty, property and anti-social behaviour – charge of possessing dangerous drugs – where not categorised as serious offences nor disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a working with children clearance must be issued – 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), 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 221, 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 Safety 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:

Self-represented

Respondent:

A. Medrana, In-house solicitor, 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 MK (‘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 is a 42 year old woman. She is the mother of a five year old child.
  3. [3]
    The Applicant seeks a working with children clearance to undertake community volunteer work.
  4. [4]
    On 27 March 2018, 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.
  6. [6]
    The Respondent considered the Applicant’s application pursuant to ss 221(1) and (2) of the WWC Act having regard to the fact that offences with which the Applicant had been charged or convicted were neither serious offences[2] nor disqualifying offences.[3] The Respondent was satisfied that the Applicant’s case was an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[4] Accordingly, by letter dated 9 July 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’[5] may apply, within the prescribed 28-day time period, for a review of a chapter 8 reviewable decision,[6] 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.[7]
  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.[8]
  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 her being issued with the negative notice.[9]

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.[10] 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.[11]
  3. [14]
    The purpose of the review is to produce the correct and preferable decision.[12]
  4. [15]
    The Tribunal must decide the review by way of a fresh hearing on the merits.[13]
  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.[14]

Law relating to blue cards specifically

  1. [17]
    The WWC Act effectively provides that a working with children clearance must be issued in circumstances which include[15] where a person has been charged or convicted with an offence other than a serious offence,[16] unless the Respondent is satisfied it is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued. In that case, a negative notice must be issued.[17]
  2. [18]
    The relevant test is set out in ss 221(1)(b)(iii), 221(1)(c) and 221(2) of the WWC Act.
  3. [19]
    Section 221 of the WWC Act relevantly provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a working with children clearance to the person if-
    1. (a)the chief executive is not aware of any police information or disciplinary information about the person; or
    2. (b)the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person –
      1. (i)investigative information;
      2. (ii)disciplinary information;
      3. (iii)a charge for an offence other than a disqualifying offence;
      4. (iv)a charge for a disqualifying offence that has been dealt with other than by a conviction; or

  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (2)
    If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance, the chief executive must issue a negative notice to the person.
  1. [20]
    The term ‘exceptional case’ used in s 221(2) of the WWC Act is not defined in the WWC Act.
  2. [21]
    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’.
  3. [22]
    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. (a)is deciding whether or not there is an exceptional case for the person; and
    2. (b)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. (a)in relation to the commission, or alleged commission, of an offence by the person-
      1. (i)whether it is a conviction or a charge;
      2. (ii)whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
      3. (iii)when the offence was committed or is alleged to have been committed;
      4. (iv)the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
      5. (v)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. (b)any information about the person given to the chief executive under section 318 or 319;
    1. (c)any report about the person’s mental health given to the chief executive under section 335;
    2. (d)any information about the person given to the chief executive under section 337 or 338;
    3. (e)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. [23]
    ‘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. [24]
    The Tribunal cannot go beyond convictions and must accept them as they are.[18] 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.[19]
  3. [25]
    Other matters may be considered in addition to those listed in s 226 of the WWC Act.[20]
  4. [26]
    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:[21]

... 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. [27]
    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.[22]
  2. [28]
    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.[23]
  3. [29]
    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:[24]

‘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. [30]
    In relation to comparable legislation, in Chief Executive Officer, Department of Child Protection v Scott (No.2), Buss J observed:[25]

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. [31]
    The Tribunal should consider risk and protective factors when determining a review decision.[26]
  2. [32]
    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.[27]
  3. [33]
    Neither party bears the onus in determining whether an exceptional case exists.[28]
  4. [34]
    The Tribunal must review a child-related employment decision[29] under the principle that the welfare and best interests of a child are paramount.[30]

Law relating to human rights

  1. [35]
    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.[31]
  2. [36]
    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.[32]
  3. [37]
    Further, except when a different action or decision is required because of a statutory provision or other law, [33] the Tribunal must:[34]
    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.[35]
  4. [38]
    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.[36]

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

Criminal history information given under section 318 of the WWC Act

  1. [39]
    The Applicant’s criminal history is as follows:
    1. (a)
      Two charges of contravene direction or requirement (on 10 December and 11 December 2013, respectively):
      1. (i)On 11 February 2014, the Magistrates Court did not record a conviction nor make an order for punishment;
    1. (b)
      One charge of receiving tainted property (on 31 October 2013), one charge of fraud – dishonestly obtains property from another (on 31 October 2013), one charge of possessing dangerous drugs (on 2 December 2013), one charge of possessing property suspected of having been used in connection with the commission of a drug offence (on 2 December 2013), one charge of unlawful use of motor vehicles, aircraft or vessels – use (between 1 December and 3 December 2013), one charge of assault or obstruct police officer (on 3 December 2013), one charge of possess tainted property (on 9 December 2013), one charge of fraud – dishonestly obtains property from another (on 9 December 2013) and one charge of unlawful use of motor vehicles, aircraft or vessels – use (on 11 December 2013):
      1. (i)It was alleged that on 31 October 2013, the Applicant received, traded and sold a guitar which she reasonably believed to be stolen property. The Applicant admitted to both offences.  The Applicant said that on the morning of 31 October 2013, she woke up to find the guitar in her living room knowing that it did not belong to her and it was not in her lawful possession (she declined to say who put it there). The Applicant admitted that she sold the guitar at a store stating that she owned the guitar;
      2. (ii)It was alleged that on 2 December 2013, police located the Applicant and her husband (who was alleged co-offender) inside a vehicle, which was later identified as stolen. The Applicant appeared drug-affected. A search disclosed the Applicant to be in possession of approximately 0.1 grams of methylamphetamine, syringes, medical swabs, a tourniquet and a silver spoon which smelt of methylamphetamine. The Applicant admitted that she used the spoon in preparing and administering methylamphetamine;
      3. (iii)It was alleged that between 1 and 3 December 2013, the Applicant unlawfully used the stolen vehicle.
      4. (iv)It was alleged that on 3 December 2013, the Applicant and her husband ran away in opposite directions when police attempted to arrest them at their residence. Police executed a search warrant at the residence and found a large quantity of property linked to a number of break and enter offences;
      5. (v)It was alleged that on 9 December 2013, the Applicant fraudulently pawned two stolen items and signed a docket stating that the items belonged to her;
      6. (vi)It was alleged that on 11 December 2013, the Applicant and her husband attended a police station in relation to another matter.  Police later inspected a stolen vehicle near the police station and found inside the vehicle, correspondence in the names of the Applicant and her husband. At the time, the Applicant was on bail for another matter and was due for first appearances in court for three other separate matters;
      7. (vii)On 11 February 2014, in respect of all the charges, the Magistrates Court did not record a conviction but ordered the Applicant to serve 12 months’ probation and pay $320 restitution;
    2. (c)
      One charge of breach of probation order:
      1. (i)It was alleged that the Applicant breached the probation order which was imposed on 11 February 2014;
      2. (ii)On 9 September 2014, the Magistrates Court did not record a conviction but ordered the Applicant to pay a fine of $250;
    3. (d)
      One charge of possess dangerous drugs (on 18 April 2014) and one charge of possess utensils or pipes etc that had been used (on 18 April 2014):
      1. (i)It was alleged that on 18 April 2014, police searched a vehicle in which the Applicant was a passenger and found several small clip sealed bags, one of which contained crystal methylamphetamine, and a set of digital scales. The Applicant had glassy eyes and was shaking. When questioned by police whether she was aware it was an offence to possess a dangerous drug, the Applicant stated “of course I do. I am on probation for it”. She also stated that she used the scales to weigh purchased drugs.
      2. (ii)No evidence was offered in relation to the charge of possess dangerous drugs.
      3. (iii)In relation to the charge of possess utensils or pipes etc that had been used, on 9 September 2014, the Magistrates Court did not record a conviction but ordered the Applicant to pay a fine of $250;
    4. (e)
      One charge of going armed so as to cause fear (on 6 June 2015), one charge of possession of a knife in a public place or a school (on 6 June 2015) and two charges of wilful damage (on 6 June 2015):
      1. (i)It was alleged that on 6 June 2015, the Applicant went to an address and demanded to speak with a person who was unwilling to do so. The complainant spoke to the Applicant over the phone, and the Applicant was noted to have a threatening demeanour. The complainant went outside and asked the Applicant to leave the property. The Applicant stated that she wanted money and the complainant gave her $10, which the Applicant was not happy with. The Applicant chased the complainant and another person while holding a large pair of bolt cutters. She yelled and cursed towards the complainant, and smashed the screen door of the residence with bolt cutters. The complainant was very fearful of the Applicant. The Applicant returned to her vehicle and reversed it, causing damage to a garage door. When police located the Applicant, they found a knife in her possession. The Applicant stated that she was carrying the knife for her protection and was willing to use it if needed;
      2. (ii)On 19 August 2015, the Magistrates Court recorded a conviction on all charges and ordered the Applicant to serve 18 months’ probation;
    5. (f)
      One charge of contravene direction or requirement (on 10 June 2015):
      1. (i)On 20 July 2015, the Magistrates Court did not record a conviction but ordered the Applicant to pay a fine of $150;
    6. (g)
      One charge of unlawful possession of suspected stolen property (on 17 November 2015):
      1. (i)It was alleged that police found a stolen wallet inside the Applicant’s vehicle on 26 November 2015. The Applicant said that she and her boyfriend located the wallet at a carpark on 17 November 2015 and she had forgotten about it. The Applicant had made no attempts to advise the owner nor police that she had found the wallet.
      2. (ii)On 7 January 2016, the Magistrates Court recorded a conviction and ordered the Applicant to pay a fine of $300.
  2. [40]
    The Applicant also has a Queensland traffic (and non-TORUM) history between the years 1997 and 2016 listing a total of 13 infringements and convictions for drive under influence of drugs (other than a relevant drug), and unlicensed driving. The Applicant was also previously disqualified from holding a driver’s licence for a period of six months in 2016.
  3. [41]
    None of the offences are a serious offence nor a disqualifying offence.[37]
  4. [42]
    The convictions of the respective offences are each a ‘conviction’ for the purposes of the WWC Act notwithstanding that no conviction was recorded.[38]
  5. [43]
    No evidence has been provided to the Tribunal regarding the Court’s reasons for imposing the respective penalties and decisions not to record a conviction.
  6. [44]
    The relevance of the drug-related offending to employment, or carrying on a business, that involves or may involve children is that children are at increased risk of physical and psychological harm by being cared for by a person who is involved with drugs. Persons under the influence of drugs may have impaired ability to provide a safe, protective and caring environment for children. There may be opportunity for children to access and use drugs which presents significant risk to their physical and mental health. Supplying drugs would negatively impact users and have a negative flow-on effect to other persons. Further, it models unsafe and unlawful behaviour.
  7. [45]
    The relevance of the going armed so as to cause fear offending to employment, or carrying on a business, that involves or may involve children is that children are at increased risk of physical and psychological harm by being cared for by a person who acts aggressively and who is unable to manage their anger and respond to stressors in a safe and appropriate manner. The Applicant’s offending reflects a disregard for the rules of public safety and raises concerns regarding her ability to judge appropriate behaviour. Further, it models unsafe and unlawful behaviour.
  8. [46]
    As a whole, the Applicant’s police information gives rise to concerns regarding her ability to judge safe and appropriate behaviour, to provide a safe and protective environment for children and to present as a positive role model. It has been recognised by the Tribunal that ‘It can be harmful for children to become aware people 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’.[39]
  9. [47]
    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 ensure their safety and wellbeing.

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

  1. [48]
    No information was requested or received pursuant to that section.

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

  1. [49]
    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. [50]
    No information was requested or received pursuant to those sections.

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. [51]
    Additional matters which are considered relevant include that the Applicant was a mature adult between 35 to 37 years at the time of the offending and that the Applicant engaged in repeated offending.

Materials provided by way of Notice to Produce

Material from the Magistrates Court

  1. [52]
    In response to a Notice to Produce, the Magistrates Court produced material which evidenced that on 9 June 2015, a Protection Order was made, which named the Applicant as the respondent and the Applicant’s former mother-in-law as the aggrieved. The Protection Order named a child and other persons as protected and included non-contact conditions and a condition that the Applicant not expose a child to domestic violence. It was made on the basis of allegations which included that the Applicant attended a residence, acted aggressively, bashed on a door with bolt cutters, pushed over two flower pots and reversed her car into a garage door causing damage. The Protection Order expired on 9 June 2017. It is noted that the Protection Order appears to have been made in the circumstances that gave rise to the Applicant’s offending of going armed so as to cause fear which occurred on 6 June 2015. Further, it was noted that the Applicant stated to police that she was an amphetamine user, she had used amphetamine the day prior to the incident and that she was 23 weeks pregnant at the time.
  2. [53]
    The relevance of the material is that it indicates that the Applicant had aggressive tendencies and engaged in domestic violence related behaviours in the context of illicit drug use. Further, the Applicant failed to act in the best interests of her unborn child by using illicit drugs whilst she was pregnant. The material reflects adversely on the Applicant’s ability to provide a safe and protective environment for children under her care.

Material from the Department of Child Safety, Youth and Women (‘Department’)

  1. [54]
    In response to a Notice to Produce, the Department produced material which indicated:
    1. (a)
      There were numerous concerns in relation to the Applicant’s continued drug use when she was pregnant and after her child was born in October 2015 and her ability to provide a safe and protective environment for her child;
    1. (b)
      On 25 November 2015, the Applicant consented to have her child placed in a placement approved by the Department;
    2. (c)
      On 1 February 2016, the Applicant and her child were reunified and the child was placed under her full-time care. The Applicant participated by agreement in a three-month residential intensive support program to address child protection concerns. The Applicant was noted to have attended thirteen drug screens, with the last ten screens indicating that she was drug-free;
    3. (d)
      On 19 February 2016, the Applicant was noted to be a much stronger person since her child was removed and that she had realised that using drugs was not achieving desired outcomes;
    4. (e)
      However on 29 September 2016, the Department recorded a Child Concern Report that the Applicant had relapsed into drug use;
    5. (f)
      On 22 May 2017, the Department recorded a Child Concern Report that the Applicant’s drug use had escalated, that she was using methylamphetamine, was not coping well, had mood swings and was erratic, sleepless, paranoid and had low patience;
    6. (g)
      On 9 June 2017, the Department recorded a Child Concern Report that the Applicant’s methylamphetamine use had escalated;
    7. (h)
      On 30 June 2017, the Department recorded a Child Concern Report that the Applicant admitted to relapsing and sporadic drug use. However the Department noted that the Applicant had re-contacted Family and Child Connect to provide consent for support, which was regarded as pro-active and demonstrated the Applicant’s insight into her own drug use and her desire to ‘get clean’.
  2. [55]
    The Department’s records indicate that the Applicant continued to use drugs until June 2017, despite multiple interactions with the Department regarding her drug use and concerns over the welfare of her child.
  3. [56]
    The Department’s records also indicate that the Applicant was a victim of domestic violence by the father of her child.
  4. [57]
    As a whole, the Department’s records raise concerns about the Applicant’s ability to provide a protective environment for children under her care and to act in their best interests.

Witness evidence

The Applicant

  1. [58]
    The Applicant is a 42 year old woman. She is the mother of a five year old child.
  2. [59]
    The Applicant has a history of illicit drug use for intermittent periods of time between the ages of 14 years and 39 years. After experiencing a number of traumas and difficulties during her childhood, the Applicant first started using illicit drugs and alcohol around the age of 14 years. She used drugs recreationally between the ages of 14 to 16 years. She then used drugs recreationally between the ages of 23 to 39 years, which included amphetamines and methamphetamines. At the age of 30 years, the Applicant also commenced using heroin. Various attempts by the Applicant to manage her drug use by engaging with counsellors, psychologists and social workers were ultimately unsuccessful although she managed periods of abstinence from drugs. Between the ages of 30 and 36 years, the Applicant was intermittently prescribed opiate replacement programs. At the age of 36 years the Applicant ceased all prescription and illegal opiate use, however she then used amphetamines and methamphetamines at an increased level.
  3. [60]
    From approximately 2007 until 2013, when the Applicant was between the ages of 29 and 35 years, she was in a significant relationship with a man who became her husband. The relationship was characterised by escalating drug use by the Applicant and her husband, violence towards the Applicant, increasing financial difficulties and commencement of her offending behaviour.
  4. [61]
    From approximately November 2014 to March 2016, when the Applicant was between the ages of 36 to 38 years, the Applicant was in a relationship with another man who was a drug addict and was violent and controlling towards her. The Applicant’s drug use continued during that relationship although she remained clean of drugs during periods when her partner was incarcerated. The Applicant and her partner had a child, born in late 2015.
  1. [62]
    In relation to the offence of possession of a knife in a public place or a school (on 6 June 2015), at the time, the Applicant was pregnant, homeless and living in her car. She had a knife with a protective case over it, which she used for the purpose of eating fruit. When police asked her if she would use the knife for protection, she agreed for the reason that she was pregnant and alone.
  2. [63]
    In relation to the offences of going armed so as to cause fear and wilful damage (on 6 June 2015), the Applicant attended at her ex-husband’s mother’s house to talk with her ex-husband. She was pregnant, hungry, needed fuel and was frustrated with previous interactions between them. She wanted him to repay her money he owed her. When he went inside and refused to talk with her, she banged on the door with what she recalls to be a torch. She was distraught and crying and accidentally cracked a pot plant as she slid onto the ground on the front porch. As her car had been left in reverse gear, when she went to leave she accidentally drove backwards causing minor damage to the garage door. Her behaviour was affected by recent drug use. She acknowledges that was not acceptable behaviour.
  3. [64]
    The other offending was in response to the Applicant’s emotional immaturity and serious drug addiction which impacted her ability to act appropriately.
  1. [65]
    The Applicant acknowledges that her offending was not appropriate by any means and caused harm to others which she is very sorry for.
  2. [66]
    The Applicant acknowledges the significant impact of her drug use on the community and her child in particular.
  3. [67]
    Shortly after her child was born in late 2015, the Applicant was involved with the Department as a result of her drug use and the domestic violence issues that she had disclosed.
  4. [68]
    When the Applicant’s child was eight weeks old, the Applicant voluntarily placed her child into the Department’s care for seven weeks. The Applicant has had full custody of her child since that time although the Department continued its involvement for a period of time.
  5. [69]
    Motivated by her strong desire to continue to parent her child and to provide a safe and protective environment for her child, the Applicant has made significant changes to her life, learnt tools and developed protective factors which now support her to act in a healthy, positive and protective manner. As a result, the Applicant’s past behaviours are not an indication of who she is now and how she will behave in the future.
  6. [70]
    Since about 2016, the Applicant has made and built upon positive changes. The Applicant ended the relationship with her child’s father, obtained new accommodation, underwent counselling with DrugArm, engaged with community supports and completed her probation order. She undertook parenting programs and worked with any community organisations that were suggested to her.
  7. [71]
    In 2017, the Applicant commenced hypnotherapy and neurolinguistics programming which she credits with saving her life. The therapy was much more successful than other therapies that she had tried previously. The therapy radically shifted her limiting belief patterns and behaviours in a way that she had never previously experienced. Through the therapy sessions and additional studying that the Applicant undertook, the Applicant worked on drug addition, parenting confidence, healing of past relationships and traumas, rebuilding self-confidence and she planned out her future career goals. The therapy promoted positive change to the Applicant’s emotional response to situations by changing her belief system to a positive belief system. Through the therapy, the Applicant identified that when she previously experienced negative emotions, such as feeling that she was not good enough or feeling hurt, that would trigger her to use drugs to deal with those negative emotions. However, following the therapy, the Applicant now does not feel the negative emotions but instead automatically responds with exercise and cooking rather than turning to drugs. As a result of completing the therapy, the Applicant now has clear life goals, is confident that she can achieve the life that she desires and has developed coping skills that will keep her safe and abstinent from drugs. The Applicant believes that she has now developed the emotional maturity of a 42 year old and makes decisions that support the positive growth and development of her and her child.
  8. [72]
    The Applicant has been completely abstinent from all drugs from the first week of July 2017, when she was aged 39 years.
  9. [73]
    The Applicant was so impressed with the therapy sessions that she subsequently completed a privately-run Diploma in Modern Psychology, in the hope that she could later help other people. The Applicant completed training to become a qualified hypnotherapist and neurolinguistics programming practitioner.
  10. [74]
    Shortly thereafter, the Applicant commenced and has now partially completed a Bachelor of Justice (major in Criminology and Policing) at university. She is genuinely interested in her studies and motivated to achieve her dream career. The Applicant has consistently achieved remarkably good results in her university studies and participated in an extra-curricular research project.
  11. [75]
    Whilst she continues her university study, the Applicant wishes to volunteer in community organisations to give back to the community, broaden her knowledge and assist her career prospects.
  12. [76]
    Through a community organisation, the Applicant now provides support to other parents and families in their interactions with the Department. She has also been appointed as a member of a Committee which reports to the Department.
  13. [77]
    The Applicant now has a safe and happy home environment.
  14. [78]
    The Applicant has now developed ongoing, strong, positive and supportive relationships with a number of people including family members such as her sister, brother, aunties, her father’s ex-partner and a small number of close friends. The Applicant is now selective about people that are involved in her life and has excluded a number of people who use drugs or are a negative influence.
  15. [79]
    The Applicant recognises triggers for her negative behaviour and has developed strategies to avoid any future effect on her. For example, the Applicant recognises that her child’s father was previously a risk factor for her drug use and offending, however she no longer experiences that effect. She has successfully engaged with him in relation to changing her child’s name. If she did experience further triggering of negative behaviours, she would proactively take steps to obtain help through discussion with another person. Further, if the Applicant found herself in a conflictual relationship, she would attempt to engage in a positive manner, remain calm and focus on the end goal without disagreement negatively impacting her behaviour.
  16. [80]
    The Applicant has developed greater awareness surrounding her mental well-being and now has the clarity and confidence to takes steps to ensure her mental and emotional wellbeing. She now practises self-care which includes meditation, exercising, journaling and talking with her supports. For example, when the Applicant recently felt disappointed after receiving a lower than expected university assessment grade, she dealt with it by talking with a friend and a university contact rather than turning to drugs which was her previous mechanism for dealing with emotional distress.
  17. [81]
    The Applicant’s life and personal attitude is now substantially different from when she was using drugs. Today she is a normal person who can deal with her emotions and situations and respond appropriately. She now has clarity about who she is and where she is going.
  18. [82]
    The Applicant seeks a working with children clearance to undertake community volunteer work.

Dr C – University Law Lecturer

  1. [83]
    Dr C taught the Applicant at university.
  2. [84]
    He described the Applicant as a determined, strongly ambitious, conscientious, collegial student with strong time-management and communication skills. He observed that the Applicant attended all of her classes, always acted in a respectful, courteous and ethical manner and demonstrated significant maturity in her studies.
  3. [85]
    Dr C said that the Applicant was a high performing student. The Applicant has achieved marks which placed her in the top 10% of students for the overall course and her recent subject grade placed her in the top 5% of students for that subject. Dr C believes that the Applicant has demonstrated commitment to her studies and future career as a justice professional.
  4. [86]
    Dr C noted that through the course, the Applicant had developed skills related to working with children and child witnesses of crime.
  5. [87]
    Dr C was aware of the Applicant’s history of drug use and offending.
  6. [88]
    He considered that the Applicant was suitable for a working with children clearance.

ES – Coordinator of a Community Project

  1. [89]
    Since April 2018, ES has had regular contact with the Applicant and her child through a community project which provides opportunities for parents with child protection experience to develop themselves through leadership and to improve outcomes for vulnerable families by providing input at the service, policy and legislative level.
  2. [90]
    ES observed that the Applicant attended numerous community project events with other parents. At those events, the Applicant openly reflected on her history of drug use and offending, shared her insights and supported other parents who wished to reunify with their children.
  3. [91]
    ES said that the Applicant’s child protection intervention was brief compared to other parents’. That was due to the Applicant’s quick response to and compliance with the Department’s requests to address child protection concerns.  The Applicant enabled reunification with her child by addressing her drug use, completing a three-month residential families program with her child, and finding suitable housing and supports.
  4. [92]
    ES observed that the Applicant was vigilant in maintaining a clean life, avoiding any persons who are influenced by drugs or who are associated with such persons. The Applicant has demonstrated determination to continually improve her family circumstances such as by obtaining entry to university and her excellent academic achievements.
  5. [93]
    The Applicant has demonstrated an exemplary ability to self-regulate and problem solve.
  6. [94]
    She noted that the Applicant has expressed her remorse numerous times about her drug use and conduct and its impact on her child and others.
  7. [95]
    ES said that the Applicant has been part of a Department advisory committee, has undertaken public panel discussions and has voluntarily supported other parents’ work towards reunification with their children. The Applicant has been inspirational to other parents by taking personal responsibility for her choices which led to her child being removed but also the positive steps she had taken to recovery and to improve their lives.
  8. [96]
    ES said that the Applicant had a high level of self-awareness, had a healthy attachment to her child, responded appropriately to her child’s needs and interacted well and respectfully with other children and their parents.
  9. [97]
    ES was aware of the Applicant’s history of drug use and offending.
  10. [98]
    She considered that the Applicant was suitable for a working with children clearance.

Dr Pauline King – Clinical Psychologist

  1. [99]
    The Applicant attended numerous cognitive behaviour therapy sessions with Dr King during 2017 and again in 2019. The Applicant also attended extensive therapy sessions with other practitioners, including clinical hypnotherapy.
  2. [100]
    Dr King observed that the Applicant made significant progress, which Dr King attributed to the Applicant’s readiness to change and become a productive member of the community after she ‘hit rock bottom’ in about 2015.
  3. [101]
    Dr King said that the therapy has resulted in the Applicant’s increased insight into and understanding of her past behaviour and awareness as to triggers, and maintaining factors, for her drug use. The Applicant had worked hard to move beyond the historical effects of her trauma to avoid relapse of her addictive behaviour. The Applicant’s motivation to provide a safe and stable environment for her child drove her decision-making and goals and was the impetus for her change of life focus.
  4. [102]
    Dr King said that the Applicant had developed a plan of action, built a positive support network in her life, made specific helpful modifications to her lifestyle, and taken care of her physical and emotional wellbeing to decrease the likelihood of relapse. She has maintained those behavioural and emotional changes and attained total reported abstinence from substance use for at least three years.
  5. [103]
    The Applicant reported feeling significant remorse for her past choices and behaviour.
  6. [104]
    Dr King believes that the risk of the Applicant relapsing into her substance use is limited and no greater than the risk for the general population.
  7. [105]
    Dr King noted that numerous protective factors reduce the risk of the Applicant’s relapse of substance use. The major protective factor is the Applicant’s motivation and need to be a functioning parent. Additional protective factors include the Applicant’s positive supports, goals for the future, her university studies and improved stress management.
  8. [106]
    Dr King had read the reasons document and was aware of the Applicant’s history of drug use and offending.
  9. [107]
    Dr King supports the Applicant being issued with a working with children clearance.

HH – the Applicant’s sister

  1. [108]
    HH was aware of the Applicant’s history of drug use and offending. She had read the reasons for issue of the negative notice.
  2. [109]
    Six weeks after the birth of the Applicant’s child, HH and another family member notified police of their concern for the child’s welfare arising from the Applicant’s high level of drug addiction and behaviour at that time.
  3. [110]
    The removal of the Applicant’s child by the Department led the Applicant to quickly make significant changes to her life to start the process of being reunited with her child. The Applicant proactively and willingly engaged in various measures to aid her recovery. She has connected with positive supports, undertaken hypnotherapy and neuro-linguistic programming courses, is achieving good results in a full-time university degree and maintains an excellent diet and exercise regime.
  4. [111]
    HH has observed the Applicant to be a patient and devoted mother with a strong and positive bond with her child.
  5. [112]
    HH noted that the Applicant is today very different to what she was like in the peak of her addiction.
  6. [113]
    HH believes that the Applicant now poses no risk to children and she supports the Applicant being issued with a working with children clearance.

MC – former partner of the Applicant’s father

  1. [114]
    MC has known the Applicant since the age of 12 years and she is familiar with the Applicant’s history of drug use and offending. She had read the reasons for issue of the negative notice.
  2. [115]
    Six weeks after the birth of the Applicant’s child, MC and HH notified police of their concern for the child’s welfare arising from the Applicant’s high level of drug addiction and behaviour at that time.
  3. [116]
    Removal of the Applicant’s child and the awareness that it could become permanent was the catalyst for the Applicant to become willing to change.
  4. [117]
    MC has observed the Applicant’s unwavering commitment to maintain a drug-free life and live a positive and productive life which contributes to a better future for her child.
  5. [118]
    The Applicant attended a live-in facility for a period of time which supported her to become drug free and taught her skills to properly care for her child.
  6. [119]
    Since then, the Applicant has successfully managed to live independently in stable accommodation, paying rent and supporting herself and her child. 
  7. [120]
    The Applicant has undertaken personal development courses, undertaken tertiary study and attained excellent academic achievement and recognition and engaged in healthy relationships with family, friends and peers. The Applicant is aware of the association between healthy lifestyle and wellbeing and participates in regular exercise, healthy eating and activities with her child.
  8. [121]
    The Applicant has expressed remorse at her choices and associations during her period of drug-taking and acknowledged that her actions were inappropriate, destructive and anti-social.
  9. [122]
    MC noted that the Applicant has taken personal responsibility for her poor choices in the past. The Applicant has chosen to make a positive contribution to the community by undertaking voluntary work and her role as a member of a Department advisory committee.
  10. [123]
    MC has observed that the Applicant makes positive connections and interacts well with both adults and children in a range of settings. The Applicant is a great mother. The Applicant has a good awareness of what creates a child’s wellbeing and is good at engaging with children in a healthy and positive manner.
  11. [124]
    MC noted that the Applicant’s current situation is very different from previous periods of abstinence from drugs. Now, the Applicant has focus and direction with her studies and her child to take care of.  The Applicant has also disassociated herself from her previous environment which was a big part of her drug taking. The Applicant now only associates with persons who are drug free and who are a positive influence in her life.
  12. [125]
    MC believes the Applicant has rebuilt her life, and her focus and commitment to the future leaves no likelihood that the Applicant will relapse to her former life of drug use and crime.
  13. [126]
    MC believes that the Applicant does not pose a risk to children and she supports the Applicant being issued with a working with children clearance.

Other witnesses

  1. [127]
    The Applicant provided written statements of other witnesses who did not present for cross-examination.

Respondent’s submissions

  1. [128]
    The Respondent identified the following risk factors relevant to the Applicant which give rise to concerns about her ability to provide a protective environment, to care for, to act protectively and to promote the best interests of children in her care:
    1. (a)
      The Applicant used drugs over a protracted period;
    2. (b)
      The Applicant previously relapsed into drug use after periods of abstinence on a number of occasions;
    3. (c)
      The Applicant used illicit drugs whilst she was pregnant and then when her child was in her care;
    4. (d)
      The Applicant engaged in various drug-related offending;
    5. (e)
      The Applicant engaged in various other offending which included violent offending;
    6. (f)
      The Applicant’s drug use and offending occurred when she was a mature woman;
    7. (g)
      The repeated nature of the drug use and offending suggests that the Applicant may not have addressed underlying triggers to those behaviours;
    8. (h)
      The Applicant’s insight into the impact of her drug use and offending on children is insufficient;
    9. (i)
      The Department previously raised numerous concerns about the Applicant’s ability to provide a protective environment, to care for, to act protectively and to promote the best interests of her child;
    10. (j)
      Insufficient time has elapsed to be satisfied that the Applicant’s current rehabilitation will be successful and that her abstinence from drugs will continue;
    11. (k)
      Insufficient time has elapsed to be satisfied that the Applicant’s current abstinence from offending will continue;
    12. (l)
      Because of the unconditional and fully-transferrable nature of a blue card, the effect of issuing a working with children clearance and blue card to the Applicant would mean that she could work unsupervised in any child-related employment or conduct any child-related business under the WWC Act.
  2. [129]
    The Respondent identified the following protective factors which give rise to more confidence about her ability to provide a protective environment, to care for, to act protectively and to promote the best interests of children in her care:
    1. (a)
      The Applicant has been abstinent from all drugs since July 2017, when she was aged 39 years;
    2. (b)
      The Applicant has engaged with Drug Arm and community support services;
    3. (c)
      The Applicant completed her probation order in 2016;
    4. (d)
      The Applicant undertook hypnotherapy and sessions with a psychologist;
    5. (e)
      The Applicant has made positive life changes such as practising self-care, implementing strategies to manage her emotions, developed security in her home environment, developed a supportive network and is pursuing higher education;
    6. (f)
      The Applicant has developed some insight into the triggers for her drug use and offending;
    7. (g)
      The Applicant has developed some insight into the negative impacts of her drug use and offending behaviour on others including her child and on society as a whole;
    8. (h)
      The Applicant has demonstrated some remorse for her offending and some of the harm that she would have caused to others;
    9. (i)
      Evidence of Dr King is that the Applicant has an ‘increased sense of worthiness’;
    10. (j)
      Evidence of Dr King that there is limited risk of the Applicant relapsing into drug use and reoffending.
  3. [130]
    The Respondent submitted that a precautionary approach should be adopted by the Tribunal.
  4. [131]
    Further, the Respondent submitted that the Tribunal must consider the transferability of notices under the WWC Act when having regard to the best interests of children.
  5. [132]
    The Respondent submitted that the risk factors identified rendered the Applicant’s case an ‘exceptional case’ in which it would not be in the best interests of children for a working with children clearance to issue.

Applicant’s submissions

  1. [133]
    In relation to the risk factors identified by the Respondent, the Applicant submitted that:
    1. (a)
      The Applicant’s offending behaviour was a direct result of her drug use and poor life choices;
    2. (b)
      The Applicant’s drug use was a direct result of her history of trauma, emotional immaturity and poor support networks;
    3. (c)
      She is now a very different person to the person that she was when she was taking drugs;
    4. (d)
      Through hypnotherapy, neurolinguistic programming therapy sessions and sessions with a psychologist, the Applicant has now gained full emotional maturity for her age;
    5. (e)
      The Applicant’s commitment to and success at her university studies demonstrates that she has developed the ability to judge appropriate behaviour and to exercise self-control;
    6. (f)
      The Applicant’s success in making good decisions and taking and maintaining positive actions such as ending her relationship with her child’s father, obtaining suitable stable accommodation, undertaking counselling, undertaking hypnotherapy, engaging with community supports, successfully completing her probation, completing training as a hypnotherapy and neurolinguistics practitioner, success in her university studies, ceasing contact with persons who were involved with drugs or who were a negative influence and developing a positive support network demonstrate her ongoing strong commitment to living a healthy life in the best interests of herself and her child;
    7. (g)
      The period of over three years, which has now passed, that the Applicant has been abstinent from drugs and offending behaviour demonstrates that she has adequately dealt with the triggers for her drug taking and offending behaviour and no longer presents a risk to children.
  2. [134]
    In relation to the protective factors, the Applicant submitted that:
    1. (a)
      The Applicant has developed insight into and feels remorseful about her drug use and offending behaviour;
    2. (b)
      Parenting her child is a significant protective factor which ensures that the Applicant remains abstinent from drugs. Concern that the Applicant’s child could be again removed from her care if she relapsed into using drugs and her desire to continue to parent and to provide a protective environment for her child was, and continues to be, a highly motivating influence;
    3. (c)
      Through undertaking counselling, undertaking hypnotherapy and engaging with community supports, the Applicant has developed a strong commitment to clear life goals which are protective in the best interests of herself and her child;
    4. (d)
      The Applicant is now selective about who she has contact with;
    5. (e)
      The Applicant now has no contact with persons who are involved with drugs or who are negative influences;
    6. (f)
      The Applicant has removed herself from the domestic violence relationship with her former partner;
    7. (g)
      The Applicant has developed and maintains relationships with friends and family who are stable, supportive, protective and positive role models for herself and her child;
    8. (h)
      The Applicant has developed greater awareness of her emotional well-being and now has the clarity and confidence to make decisions and take actions which produce a positive outcome;
    9. (i)
      She now practises self-care including meditation, exercise and journaling which supports her mental wellbeing and emotional regulation;
    10. (j)
      She now practises positive and healthy ways of managing her emotions such as by discussion;
    11. (k)
      The Applicant’s university course is a significant protective factor because it is a means for her to achieve her life goals and engages her with positive supports;
    12. (l)
      The Applicant’s volunteer work with a community support group which assists and supports other parents and families is a significant protective factor;
    13. (m)
      The Applicant’s volunteer work with a Department advisory committee is also a significant protective factor.
  3. [135]
    The Applicant submits that having regard to all the circumstances, the Tribunal should find that the Applicant’s case is not an ‘exceptional case’ and that the decision of the Respondent should be set aside.

Consideration of the evidence and findings of fact

  1. [136]
    The Tribunal gives no weight to the written statements of persons who were not made available to give evidence before the Tribunal because there was no opportunity to test their evidence by cross-examination.
  2. [137]
    In respect of those witnesses who did give evidence before the Tribunal, the Tribunal notes that:
    1. (a)
      All the witnesses presented as open and sincere;
    2. (b)
      All witnesses demonstrated at least a general knowledge, and in some cases a detailed knowledge, of the reasons for issue of the negative decision including the Applicant’s history of drug use and offending;
    3. (c)
      The Applicant’s evidence is largely supported by evidence of the other witnesses and documentary evidence; and
    4. (d)
      For those reasons, the Tribunal accepts the evidence of those witnesses.
  3. [138]
    On the basis of the evidence, the Tribunal makes the following findings of fact:
    1. (a)
      The Applicant’s criminal history is as outlined above;
    1. (b)
      The Applicant is genuinely remorseful for her illicit drug use and offending behaviour and the impact on her child, other affected persons and the community at large;
    2. (c)
      The Applicant has genuine insight into her drug use and offending behaviour including triggers;
    3. (d)
      The Applicant understands that her drug use and offending behaviour presents a risk to children and is not suitable for a person responsible for the care of children;
    4. (e)
      The Applicant is now highly motivated to ensure that her child is not removed from her care and to continue to parent and to provide a protective environment for her child;
    5. (f)
      The Applicant is now highly motivated to maintain abstinence from drugs and offending;
    6. (g)
      Since her last offending, Applicant has achieved significant positive changes to her life including:
      1. (i)She completed her probation order in 2016;
      2. (ii)She completed counselling with DrugArm;
      3. (iii)She engaged with the Department and community support services and supports;
      4. (iv)She undertook parenting programs;
      5. (v)She undertook hypnotherapy, neurolinguistics programming therapy sessions and sessions with a psychologist;
      6. (vi)She completed a privately run Diploma in Modern Psychology which trained her as a hypnotherapy and neurolinguistics practitioner;
      7. (vii)She has now partially completed a Bachelor of Justice at university with remarkably good results putting her in at least the top 10% of students for the overall course;
      8. (viii)She has undertaken and continues to undertake volunteer work with a community organisation providing support to other parents and families in their interactions with the Department;
      9. (ix)She has served and continues to serve as a member of a Committee which reports to the Department on relevant issues;
      10. (x)She has removed herself from the domestic violence relationship with her former partner;
      11. (xi)She is selective about who she has contact with and no longer associates with any person who uses illicit drugs;
      12. (xii)She has developed ongoing strong, stable, positive and supportive relationships with a number of people including friends and family;
      13. (xiii)She has stable accommodation and a safe home environment;
      14. (xiv)She has independently cared for her child after it was reunited with her, with some involvement with the Department;
      15. (xv)She has developed greater awareness surrounding her mental well-being and practises self-care which includes meditation, exercising, journaling and talking with her supports;
      16. (xvi)She recognises triggers for negative behaviour and has developed strategies to avoid trigger of a relapse of drug use or offending behaviour. These include proactively taking steps to obtain help through discussion with another person, attempting to engage in a positive manner, remaining calm and focusing on the end goal without disagreement negatively impacting her behaviour;
      17. (xvii)She has been abstinent from drugs since July 2017; and
      18. (xviii)She has not engaged in further offending since the offending outlined above.

Consideration of the law and facts relevant to this case

  1. [139]
    The Tribunal is required to determine whether an exceptional case now exists in respect of the Applicant.
  2. [140]
    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. [141]
    The Tribunal has also considered the submissions on behalf of the Applicant and Respondent respectively concerning relevant risk factors and protective factors.
  4. [142]
    The Tribunal accepts that the Applicant was not charged with nor convicted of a serious offence nor a disqualifying offence.[40]
  5. [143]
    However, the Applicant has a criminal history as follows:
    1. (a)
      Two charges of contravene direction or requirement (on 10 December and 11 December 2013, respectively):
      1. (i)In respect of those charges, the Magistrates Court did not record a conviction nor make an order for punishment;
    1. (b)
      One charge of receiving tainted property (on 31 October 2013), one charge of fraud – dishonestly obtains property from another (on 31 October 2013), one charge of possessing dangerous drugs (on 2 December 2013), one charge of possessing property suspected of having been used in connection with the commission of a drug offence (on 2 December 2013), one charge of unlawful use of motor vehicles, aircraft or vessels – use (between 1 December and 3 December 2013), one charge of assault or obstruct police officer (on 3 December 2013), one charge of possess tainted property (on 9 December 2013), one charge of fraud – dishonestly obtains property from another (on 9 December 2013) and one charge of unlawful use of motor vehicles, aircraft or vessels – use (on 11 December 2013):
      1. (i)In respect of all the charges, the Magistrates Court did not record a conviction but ordered the Applicant to serve 12 months’ probation and pay $320 restitution;
    2. (c)
      One charge of breach of probation order:
      1. (i)In respect of that charge, the Magistrates Court did not record a conviction but ordered the Applicant to pay a fine of $250;
    3. (d)
      One charge of possess dangerous drugs (on 18 April 2014) and one charge of possess utensils or pipes etc that had been used (on 18 April 2014):
      1. (i)No evidence was offered in relation to the charge of possess dangerous drugs. In relation to the charge of possess utensils or pipes etc that had been used, the Magistrates Court did not record a conviction but ordered the Applicant to pay a fine of $250;
    4. (e)
      One charge of going armed so as to cause fear (on 6 June 2015), one charge of possession of a knife in a public place or a school (on 6 June 2015) and two charges of wilful damage (on 6 June 2015):
      1. (i)In respect of all the charges, the Magistrates Court recorded a conviction and ordered the Applicant to serve 18 months’ probation;
    5. (f)
      One charge of contravene direction or requirement (on 10 June 2015):
      1. (i)In respect of the charge, the Magistrates Court did not record a conviction but ordered the Applicant to pay a fine of $150;
    6. (g)
      One charge of unlawful possession of suspected stolen property (on 17 November 2015):
      1. (i)In respect of the charge, the Magistrates Court recorded a conviction and ordered the Applicant to pay a fine of $300.
  6. [144]
    For reasons that are detailed above, the Applicant’s offending behaviour is a significant risk factor which gives rise to very serious concerns about her ability to provide a protective environment for children and to ensure their safety and wellbeing.
  7. [145]
    The Tribunal accepts that:
    1. (a)
      The Applicant has not engaged in any further offending behaviour since 17 November 2015; and
    1. (b)
      The Applicant has not used illicit drugs since July 2017.
  8. [146]
    However, the passage of time alone is not determinative of whether or not a case is an exceptional case[41] and it is necessary to consider this risk factor and other risk factors in the context of all the relevant circumstances.
  9. [147]
    The Tribunal finds the evidence of Dr King, clinical psychologist, to be particularly persuasive because Dr King treated the Applicant with numerous cognitive behaviour therapy sessions during 2017 and saw the Applicant again in 2019. Dr King was aware of the Applicant’s criminal history and of the Respondent’s concerns. Dr King appeared to address the identified risk and protective factors in a considered manner. Dr King assessed that the risk of the Applicant relapsing into drug use is limited and no greater than the risk of the general population. Dr King believed that the Applicant did not present a risk to children and supported her being issued with a working with children clearance.
  10. [148]
    Having regard to all the evidence, the Tribunal accepts that risk is currently mitigated by several factors:
    1. (a)
      The Applicant has demonstrated the development of genuine insight into the triggers and risk factors for her drug use and offending. The Applicant is able to articulate the reasons for her offending including history of trauma, emotional immaturity and poor support networks. She has developed this insight, at least in part, through various professional counselling and therapy. The Applicant has developed greater awareness of her mental well-being, developed strategies and a plan of action and made specific helpful modifications to her lifestyle, including self-care and positive ways of managing her emotions, to avoid the likelihood of relapse;
    1. (b)
      The Applicant has demonstrated genuine remorse for her offending and regret for the effect of her offending on her child, affected persons and the community as a whole;
    2. (c)
      The Applicant has demonstrated genuine insight into the risk that her offending behaviour presents to children and that it is not suitable for a person responsible for the care of children;
    3. (d)
      Parenting her child is a significant protective factor. The Applicant’s desire to continue to parent and to provide a protective environment for her child is a highly motivating influence for her to remain abstinent from drug use and further offending;
    4. (e)
      The offending behaviour occurred in the context of the Applicant’s history of being in a domestic violence relationship and her association with persons who used drugs. This is currently not a significant risk factor because the Applicant is no longer in the domestic violence relationship and no longer associates with persons who are involved with drugs. The Applicant is now selective about who she has contact with and seeks to avoid contact with any person who is a negative influence;
    5. (f)
      The Applicant’s success in her tertiary studies is a significant protective factor because it is a means for her to achieve her positive life goals and engage with positive supports. She has demonstrated commitment to achieving those goals which is likely to be protective against further offending behaviour;
    6. (g)
      The Applicant’s engagement with a community support group which assists and supports other parents and families and her work with a Department advisory committee are also protective factors;
    7. (h)
      The Applicant has established positive stable supports including her friends and family which are also likely to be protective against further offending; and
    8. (i)
      The Applicant has suitable and stable accommodation which is also likely to be protective against further offending.
  11. [149]
    The Tribunal is satisfied that the Applicant has demonstrated a genuine commitment and determination to make positive changes to her life and, to her credit, has effectively turned her life around.
  12. [150]
    The Tribunal is satisfied that the Applicant’s life and personal circumstances are now vastly different to her circumstances at the time of her drug use and offending behaviour and at the time of her previous unsuccessful attempts to cease drug use.
  13. [151]
    Those positive changes have been successful in ameliorating the risk of further offending behaviour.
  14. [152]
    Having regard to the evidence and various matters set out above, the Tribunal is satisfied, on the balance of probabilities, that the Applicant now presents a low risk of reoffending and that there is not a real and appreciable risk that the Applicant would harm children whilst employed or undertaking volunteer work.
  15. [153]
    Further, the Tribunal is not satisfied, on the balance of probabilities, that it would not be in the best interests of children for the Respondent to issue a working with children clearance.
  16. [154]
    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 221(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 an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act is set aside and replaced by the decision that there is no ‘exceptional case’ in respect of the Applicant.

Non-publication

  1. [155]
    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.[42]
  2. [156]
    The parties have not made application or submissions as to whether orders for
    de-identification or non-publication of the reasons and orders are necessary in this case. However, it is open to the Tribunal to make such an order on its own initiative.
  3. [157]
    A child-related employment review is required to be held in private.[43] 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.[44]
  4. [158]
    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 her and in particular children for whom she has cared, other than to the parties of the proceedings, is prohibited pursuant to s 66 of the QCAT Act.
  5. [159]
    Accordingly, these reasons are to be published in a de-identified format.

Relevant Human Rights

  1. [160]
    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;[45]
    1. (b)
      acted and made a decision in a way that is compatible with human rights; [46] and
    2. (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.[47]
  2. [161]
    Human rights which may be affected by this child-related employment decision made under the WWC Act relevantly include:
    1. (d)
      the human rights of the Applicant to ‘privacy and reputation’,[48] ‘to take part in public life’,[49] ‘to further vocational education and training’;[50] and
    2. (e)
      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’.[51]
  3. [162]
    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.[52] 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. [163]
    Accordingly, the Tribunal makes the following orders:
  1. The decision of the Director-General, Department of Justice and Attorney-General that MK’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced by the decision that there is no exceptional case in respect of MK.
  2. Publication of the name or identifying information of MK or any person associated with her and in particular children for whom she has cared, 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]The Applicant was issued a blue card in 2012.  The Applicant’s blue card was cancelled (surrendered) in 2014 following a notification of a change in the Applicant’s police information. 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 ‘disqualifying offence’); s 16.

[4]WWC Act, s 221(2).

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

[6]WWC Act, s 354(1).

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

[8]WWC Act, s 354(1).

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

[10]QCAT Act, s 19(a).

[11]QCAT Act, s 19(c).

[12]QCAT Act, s 20(1).

[13]QCAT Act, s 20(2).

[14]QCAT Act, s 21.

[15]WWC Act, s 221(1).

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

[17]WWC Act, s 221(2).

[18]Pritchard v Chief Executive Officer, Public Safety 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].

[19]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].

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

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

[22]WWC Act, s 5(b).

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

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

[25][2008] WASCA 171, [109].

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

[27]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.

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

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

[30]WWC Act, s 360.

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

[32]HRA, s 48.

[33]HRA, s 58(2).

[34]HRA, s 58(1).

[35]HRA, s 58(5).

[36]HRA, ss 8, 13.

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

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

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

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

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

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

[43]WWC Act, s 361(1).

[44]WWC Act, s 360.

[45]HRA, s 48.

[46]HRA, s 58(1).

[47]HRA, s 58(5).

[48]HRA, s 25.

[49]HRA, s 23.

[50]HRA, s 36(2).

[51]HRA, s 26(2).

[52]HRA, s 13(2)(b).

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Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QCAT 62

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    23 Feb 2021

Appeal Status

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

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