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STR v Director-General, Department of Justice and Attorney-General[2022] QCAT 69

STR v Director-General, Department of Justice and Attorney-General[2022] QCAT 69

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

STR v Director-General, Department of Justice and Attorney-General [2022] QCAT 69

PARTIES:

STR

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO:

CML046-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 March 2022

HEARING DATE:

9 February 2022

HEARD AT:

Brisbane

DECISION OF:

Member Dr Collier

ORDERS:

The decision of the Director, Blue Card Services (Screening Services) made on 14 December 2020 to issue a negative notice to the Applicant is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where the chief executive was provided with police information about the Applicant and issued a negative notice – where Applicant not convicted of a ‘serious offence’ – whether an ‘exceptional case’

Commission for Children and Young People and Child Guardian Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28(3), s 28(3)(b)

Working With Children (Risk Management & Screening) Act 2000 (Qld), s 167, s 221, s 221(1), s 221(2), s 226(2), s 360

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

Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

APPEARANCES &
REPRESENTATION:

Applicant:

Self-represented

Respondent:

A Sanders, Advocacy Officer, Department of Justice Attorney-General

REASONS FOR DECISION

  1. [1]
    This matter was heard by videoconference. Witnesses participated by telephone alone.
  2. [2]
    In accordance with the decision of the Tribunal dated 15 October 2021, at paragraph 4, concerning suppressing the identity of the Applicant and certain close relatives, this decision has de-identified the Applicant, family members and children, and other persons involved in this matter.
  3. [3]
    The Applicant is a 42-year-old woman who lives in Toowoomba. She has qualified and practices in several occupations, including kinesiology and Bowen therapy. She also has worked for support agencies including Yellow Bridge, an organisation that provides housing, disability support, and home services in support of youth in Toowoomba.
  4. [4]
    It appears that the Applicant was issued a blue card first in 2014, and again in 2017. The later card expired in September 2019.
  5. [5]
    By a written application dated 26 May 2020 the Applicant applied for a Blue Card Business, that is a blue card permitting the Applicant to engage in child-related employment as either self-employed or as an executive officer proposing to start or continue to carry on a child-related business.
  6. [6]
    On 24 July 2020 the Respondent invited the Applicant to make a submission in support of her application in light of information provided to the Respondent about the Applicant’s appearance before the Magistrates Court on 12 November 2019 concerning charges of possessing dangerous drugs and of possessing drug paraphernalia suspected of having been used in connection with the commission of a drug offence.
  7. [7]
    The Applicant offered a written explanation dated 8 October 2019 to the Court for the events surrounding her charges[1], but was found guilty of both charges and fined $600, with no conviction recorded.
  8. [8]
    In response to the Respondent’s invitation to make a submission in support of her application, it appears that the Applicant submitted the written explanation dated 8 October 2019 she had previously presented to the Magistrates Court.
  9. [9]
    On 14 December 2020 the Respondent issued a negative notice and a statement of reasons to the Applicant refusing the issue of a blue card.
  10. [10]
    The Respondent issued a negative notice in this case despite the Applicant not having committed or allegedly committed a serious offence[2] because the Respondent considered that this was an exceptional case in which it would not be in the best interests of children for the [Respondent] to issue a positive notice.[3]
  11. [11]
    On 14 February 2021 the Applicant filed an application with the Tribunal to review the decision of the Respondent to issue a negative notice.
  12. [12]
    On 10 June 2021 the Applicant wrote to the Respondent and this Tribunal with a further statement explaining why the Respondent should reverse its decision to issue a negative notice.

Why was the Applicant issued a negative notice?

  1. [13]
    The reasons the Applicant was issued a negative notice are contained in the Reasons sent to the Applicant under cover of letter from the Respondent dated 14 December 2020.
  2. [14]
    From this statement of reasons, it is evident that the principal reason the Applicant was issued with a negative notice because of her conviction in the Magistrates Court on 12 November 2019 on the charges relating to drugs, and the circumstances leading up to and surrounding the finding by police of drugs on the Applicant’s premises. The Respondent also made reference to surrounding circumstances including the Applicant’s conduct when dealing with unrelated children coming within her care, and records from Child Support Services.

The relevant statutory provisions

  1. [15]
    The role of the Tribunal in this case is to stand in the position of the respondent decision-maker to arrive at the correct and preferable decision.[4] The Tribunal must decide the review by way of a fresh hearing on the merits. It is not necessary to establish any error in either the process or the reasoning that led to the decision and there is no presumption that the reviewable decision was correct.[5]
  2. [16]
    In conducting a proceeding, the Tribunal on review is not bound by the rules of evidence,[6] but must observe the rules of natural justice and, among other things, ‘ensure, so far as is practicable, all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.’[7]
  3. [17]
    The usual rule relating to the assessment of an application for a blue card is given in the Working with Children (Risk Management and Screening) Act 2000 Qld (WWC Act) s 221(1), which says:

(1) Subject to subsection (2), the chief executive must issue a positive notice to the person if—

…

(c) the chief executive is aware of a conviction of the person for an offence other than a serious offence.

  1. [18]
    However, WWC Act s 221(2) says:

(2) If subsection (1)(b) or (c) applies to the person and the [Respondent] 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 positive notice, the [Respondent] must issue a negative notice to the person.

  1. [19]
    Therefore, because the Applicant has not been convicted of a serious offence, the Respondent must issue the Applicant a positive notice unless the Respondent is satisfied that this is an exceptional case.
  2. [20]
    The Respondent, in paragraph 6 of its Reasons said, inter alia:

… I am satisfied that an exceptional case exists in which it would not be in the best interests of children for a blue card to be issued to the applicant …

  1. [21]
    At the end of paragraph 6 the Respondent added the rider to its decision that the Applicant should not be issued a blue card “… at this time”.
  2. [22]
    Section 226(2) of the WWC Act sets out the factors the Respondent must take into account when assessing whether an application represents an exceptional case when an applicant has been charged or convicted of an offence. These are:

(a) in relation to the commission, or alleged commission, of an offence by the person—

(i) whether it is a conviction or a charge; and

(ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and

(iii) when the offence was committed or is alleged to have been committed; and

(iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and

(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;

…

(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]
    These factors are not exhaustive[8] and will not necessarily be given equal weight in assessing an application.[9]

What the Tribunal has to consider

  1. [24]
    The Tribunal has to determine whether the application by the Applicant is an exceptional case.
  2. [25]
    In addition to the statutory provisions, what else should the Tribunal consider when assessing whether the instant case is an exceptional case? When considering the previously titled Act[10] to the WWC Act the Appeal Tribunal posited in Ram’s case the following factors be taken into account:[11]

… rehabilitation from a previous proclivity of engaging in offending behaviour is only one aspect of the protective factors that would be necessary to be established in this case before a blue card should be issued. Remorse and insight are other aspects.

  1. [26]
    Further, there are no restrictions that can be placed on a blue card upon a positive notice being issued by Blue Card Services. This means the holder of a blue card may engage in any form of regulated employment. Ram’s Case also provides guidance when it comes to assessing the implications of blue card transferability and whether a matter is an exceptional case, when it says:[12]

It is also true that the Commission Act does not mandate that the Tribunal, on review, must consider the transferability of a blue card as being a relevant factor in determining whether there is an ‘exceptional case’ for the purposes of s 225. However that factor is relevant to consideration of the issue in s 225(2) that the decision maker must be satisfied that it would not harm the best interests of children for a positive notice to be issued. Issuing a positive notice means that the holder of a blue card may engage in any type of employment or business activity. Such a person could change employment or activity from one with a low incidence of involvement with children to one with a high level and intimate level of contact with children.

  1. [27]
    As a result, the Tribunal has to be cognisant of the fact that a blue card holder may be in close and intimate contact with children and young people, irrespective of the original basis on which a blue card was issued, and any consequence this may have for their safety and well being.

Respondent’s evidence

  1. [28]
    The Respondent’s written evidence comprised:
    1. the Statement of Reasons disclosed under letter dated 14 December 2020;
    2. final submissions tendered at the end of the hearing;
    3. the bundle of documents disclosed under letter dated 29 July 2021 (marked BCS-1 to BCS-41); and
    4. the bundle of documents disclosed under letter dated 7 December 2021 (marked NTP-001 to NTP-052).
  2. [29]
    After the hearing the Respondent filed pages BCS-42 and BCS-43, which was a transcript of the proceedings in the Toowoomba Magistrates Court on 12 November 2019 concerning the Applicant’s hearing on the drug-related charges. The Applicant would be aware of the information contained in this document, such that no injustice would arise from my consideration of this additional material.
  3. [30]
    The Respondent referred the Tribunal to factors that it called the ‘protective factors’ and the ‘risk factors’.
  4. [31]
    The protective factors, those factors that favour the issue of a positive notice, identified by the Respondent during the hearing involved, essentially, the Applicant’s intention to be kind by assisting otherwise homeless young people.
  5. [32]
    The principal risk factors, those factors that speak against the issue of a positive notice, the Respondent raised included:
    1. (a)
      The Applicant having been found guilty in 2019 on two drug-related offences;
    2. (b)
      The Applicant’s response to her offending and her failure to comply with the law; and
    3. (c)
      The recency of the Applicant’s offending.

Applicant’s evidence

  1. [33]
    The Applicant made a number of submissions in support of her application, as follows.
  2. [34]
    The Applicant described her study since 2010 as relevant to dealing with children, including her diploma in “safe places for children” and an associate degree in consulting from the University of Southern Queensland.
  3. [35]
    I have also considered the Applicant’s submission to the Toowoomba Magistrates Court dated 8 October 2019 in regard to her drugs charges, the transcript of the Magistrates Court proceeding, and her submission dated 10 June 2021 to Blue Card Services in support of her blue card application.
  4. [36]
    She referred to her work with support organisations including Richmond Fellowship Queensland, Yellow Bridge, and United Synergies as evidence of her ability to work with people, including children, in difficult circumstances.
  5. [37]
    The Applicant also asserted that her offending, in 2019, should be seen as having occurred ‘quite a while ago’, and that the use of marijuana is now largely legal.
  6. [38]
    The Applicant had previously held a blue card for about six years before it expired in Spetember 2019.
  7. [39]
    The Applicant submitted written letters of support from four people, the relevance of which is considered later in this decision.
  8. [40]
    In cross-examination, the Respondent raised a number of issues, to which the Applicant responded, as follows.
  9. [41]
    The Applicant claimed that her elder daughter had been raped by her husband, the daughter’s father, over a period of time in 2014, when the daughter was 13-14 years of age. While the Applicant’s oral evidence concerning the allegation of rape was obtuse, it appeared that the Applicant was either not aware of the alleged rape until 2021 or, had she been so aware, failed to report it to authorities earlier. The Applicant asserted that the school was aware of the allegation but did not report the allegation to the police. In any event, the police did not proceed with any charges concerning this allegation.
  10. [42]
    The Applicant testified that she did not, and would not have, reported the alleged rape of her daughter to authorities because the Applicant believed that no action would have been taken by any relevant agency.
  11. [43]
    When asked whether the children who came under her care may have been better served by referring them to professional services, the Applicant said ‘yes and no’. The Applicant claimed that, in her experience, children who had gone to authorities had not been given the support they needed.
  12. [44]
    The Applicant agreed with the proposition put to her by the Respondent that she never put any children who came to her notice in touch with support agencies.
  13. [45]
    When asked whether she had had any training in regard to addiction or addictive behaviours, the Applicant answered, ‘none at all really’.
  14. [46]
    The Applicant had had up to three teenagers and a 10-year-old stay at the Applicant’s residence who, in turn, introduced homeless children to the Applicant who permitted them to reside with the Applicant for periods of up to two months, mainly in the garage attached to the residence. The Applicant said that she admonished visiting children to be clean and tidy, and enforced her rules by ‘yelling at them’.
  15. [47]
    There were several instances of children staying with the Applicant who were either affected by drugs or alcohol, or both, or used drugs and alcohol while staying with the Applicant. The evidence suggested that the Applicant would not confiscate drugs, drug paraphernalia or alcohol while a child was staying at the Applicant’s residence, although it would be ‘confiscated’ after the child left, and placed in the Applicant’s bedroom.
  16. [48]
    When otherwise homeless young people resided with the Applicant, they had to use the en-suite bathroom facilities attached to the Applicant’s bedroom. This meant that children had to pass through the place where drugs were kept by the Applicant whenever they had to use the bathroom.
  17. [49]
    The Respondent referred to numerous instances when Child Safety Services had had occasion to visit the Applicant and her children, and prepare reports of their visit. Eighteen reports were prepared by Child Support Services involving the Applicant in the period 2009 to 2017. Some of the more relevant are shown in the following table:

Date

Reference

Allegation

Applicant’s response

26/2/2009

NTP1-2

Applicant suffering anxiety and depression; Applicant drinking excessively and using drugs; Applicant had ecstasy tablets

Allegations denied. They were made by husband following separation.

29/1/2010

NTP3-5

Applicant engaged in minor violence

Applicant cannot recall incident. Police appear to doubt the Applicant’s version of events at the time.

6/5/2010

NTP9-10

  • Applicant using marijuana
  • Applicant bipolar
  • Applicant’s daughters always dirty, unclean and unwashed
  • Two men staying in the house with Applicant

Each allegation denied. Allegations probably made by husband.

3/7/2015

NTP19-22

Self-harm by elder daughter; daughter did not wish to live with mother.

Applicant agreed she may have been aggressive, but asserted that daughter chose to stay with father because he is lenient.

23/8/16

NTP28-30

  • Elder daughter, aged 15, has a boyfriend aged 23, and they are sexually active
  • Concerns that LSD is being supplied

The Applicant claims no knowledge of either allegation.

3/11/2016

NTP31-33

  • Elder daughter, aged 15, has a boyfriend aged 23, and they are sexually active
  • Concerns that LSD is being supplied

The Applicant claims no knowledge of either allegation.

  1. [50]
    The Respondent suggested that these reports indicated the Applicant’s lack of insight. The Applicant, on the other hand, said that many of the accusations leading to investigation by Child Support Services had come from her former husband, although there was no evidence of this.
  2. [51]
    Reference was made earlier in this decision to letters of support from four people known to the Applicant. Two of these people were able to give oral evidence and be examined on their evidence.
  3. [52]
    The tenor of each reference is to the effect that the Applicant is a kind person who tries to improve the life of vulnerable children. I am unable to give much weight to the evidence contained in the written letters where the authors could not be cross-examined.
  4. [53]
    Witness 1, who could be cross-examined, I found to be a person who was credible and honest. She stated that, for about two years, the Applicant permitted homeless youth to reside in the Applicant’s garage, set up as a bedroom. The Applicant would allow them to wash and would feed the children, who were usually aged 15-16 years.
  5. [54]
    When asked by the Respondent whether the Applicant should have set better boundaries for the homeless youths she assisted, Witness 1 said that the Applicant had had a tough life for some time, but that the Applicant was ‘a bit naïve in this respect’. Witness 1 said that the Applicant should just have got rid of the drugs and alcohol.
  6. [55]
    Witness 2 had known the Applicant since 2019 when they met while working at Yellow Bridge, a body offering housing, disability support, and home services in Toowoomba. They worked together for approximately one year and have remained friends since. Both the Applicant and Witness 2 appear to have worked with people at Yellow Bridge who were physically disabled and over the age of sixteen years.
  7. [56]
    Witness 2 testified that, in his experience, the Applicant consumes neither drugs nor alcohol. He said that the Applicant is remorseful because she tried to assist her elder daughter, who was somewhat wayward, and this experience has rebounded on the Applicant. He said that he would ‘be happy to have [the Applicant] look after my 11-year-old daughter’.

Applying the evidence

  1. [57]
    In assessing whether this is an exceptional case the Tribunal has to consider at least the following factors that are derived from the WWC Act and cases considered above.
  2. [58]
    The principle for reviewing a child-related employment decision prescribed in the WWC Act is:[13]

A child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.

  1. [59]
    The Applicant made the point during the hearing that she has lost work opportunities because she has not been issued a blue card. This, however, is not a factor that this Tribunal may consider in making its decision. The welfare and best interests of children are the only relevant criteria.
  2. [60]
    The relevant standard of proof required in this case is that the decision maker must be satisfied on the balance of probabilities.
  3. [61]
    The evidence before the Tribunal indicates that the Applicant has faced and overcome personal difficulties in her life. She has worked through, over time, conflict between herself and, in particular, her elder daughter, conflict that is not uncommon between parents and children. The Applicant has demonstrated the ability to connect to young people and others with a disability who are not related to her, and a desire to render practical assistance to such individuals when required to the best of her ability.
  4. [62]
    However, it is evident that the Applicant has had difficulty in setting proper boundaries concerning the use of drugs and alcohol when young people have come within her sphere of influence. This weakness may be remedied by her undertaking formal study concerning the management of vulnerable children affected by drug and alcohol addiction.
  5. [63]
    The Applicant’s 2019 conviction, with no conviction recorded, for the possession of drugs and drug utensils is quite recent and occurred when the Applicant was a mature adult. I have not been persuaded that her possession of the drugs and utensils arose only from her confiscation of these items from a homeless young person who had stayed at her premises. Her tolerance of the consumption of drugs and alcohol by young people while staying with her, and her unwillingness to refer such vulnerable young people to proper agencies capable of assisting them, suggests that she has not developed a proper appreciation of the adverse effects of this behaviour on the need properly to protect children. Her evidence that she has little or no faith in the ability of agencies established to assist vulnerable young people indicates that she may not, in the future, take steps in the best interests of vulnerable young people, placing her personal assessment of their needs as paramount in the circumstances.
  6. [64]
    The evidence of the Applicant’s witnesses reinforces my conclusion concerning the general kindness and willingness of the Applicant to assist young people, but does not displace my concern about her failure properly to understand the boundaries that must be set when dealing with vulnerable young people.
  7. [65]
    I am satisfied to the relevant standard of proof that this is an exceptional case, and it is not in the best interests of children to disturb the original decision of the Respondent.

Decision

  1. [66]
    The Tribunal makes the following Order:
    1. (a)
      The decision of the Director, Blue Card Services (Screening Services) made on 14 December 2020 to issue a negative notice to the Applicant is confirmed.

Footnotes

[1]  Copy shown in documents supplied by Blue Card Services in the Tribunal file at pages BCS-27 to BCS-29.

[2] Working with Children (Risk Management and Screening) Act 2000 Qld (WWC Act) s 167.

[3]  WWC Act s 221, which is explained in more detail later.

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20.

[5] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [8].

[6]   QCAT Act, s 28(3)(b).

[7]  QCAT Act, s 28(3).

[8] Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27, 23.

[9] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, 53.

[10] Commission for Children and Young People and Child Guardian Act 2000 (Qld).

[11]  [2014] QCATA 27.

[12]  Ibid 6.

[13]  WWC Act, s 360

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2022] QCAT 69

  • Court:

    QCAT

  • Judge(s):

    Member Dr Collier

  • Date:

    08 Mar 2022

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
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
3 citations
Jump To
Cite 1 - [2014] QCATA 27
Cite 2 - [2014] QCATA 27
Cite 3 - [2014] QCATA 27
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58

Cases Citing

Case NameFull CitationFrequency
MJD v Director General, Department of Justice and Attorney General [2023] QCAT 2102 citations
1

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