JDW v Director-General, Department of Justice and Attorney-General
[2023] QCAT 100
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- JDW v Director-General, Department of Justice and Attorney-General[2023] QCAT 100
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JDW v Director-General, Department of Justice and Attorney-General[2023] QCAT 100
JDW v Director-General, Department of Justice and Attorney-General[2023] QCAT 100
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | JDW v Director-General, Department of Justice and Attorney-General [2023] QCAT 100 |
PARTIES: | JDW (applicant) v Director-General, Department of Justice and Attorney-General (respondent) |
APPLICATION NO/S: | CML418-21 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 22 March 2023 |
HEARING DATE: | 8 March 2023 |
HEARD AT: | Brisbane- in the Land Court |
DECISION OF: | Member McDonald |
ODERRS: |
|
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 – where applicant has charge – where convictions from possession and supply of dangerous drugs – where applicant was a holder of a blue card and sporting coach. Human Rights Act 2019 (Qld), s 8, s 13, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66, s 99(2)(a) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, 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 Maher and Anor [2004] QCA 492 WJ v Chief Executive Officer Public Safety Business Agency [2015] QCATA 190 | |
APPEARANCES & REPRESENTATION: | |
Applicant: | JDW |
Respondent: | Hailstones, L - Legal Officer Blue Card Services |
REASONS FOR DECISION
- [1]JDW is 27 years old. He was coaching children and adults at a community-based sporting organisation, when his blue card was cancelled based on new police information affecting his criminal record. He has sought review of the decision made on 30 November 2021 by Blue Card Services to issue a negative notice. He states that he needs a blue card to continue his career and work in his chosen profession and the job he has held since 2017.
- [2]JDW provided the Tribunal with the following documents: his application,[1] attaching a response to the decision, a life story[2] a statement of evidence containing QML drug screens dated 24 February 2021, 9 June 2021, and 25 April 2022 and ten references.[3] Eight of these witnesses gave oral evidence at hearing. He also provided oral submissions to the Tribunal.
- [3]The respondent provided documents marked BCS 1-72, which included the applicant’s criminal history, a copy of the negative notice, transcript of sentencing remarks, and NTP 1-36 which included material produced under a notice to produce by the Queensland Police Service. JDW’s witnesses were cross examined by the respondent. The respondent also provided written and oral submissions.
- [4]
- [5]The decision under review was made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), and this enabling act applies to the review. The object of the WWC Act is promote and protect the rights of children in employment screening decisions to ensure that people who work or propose to work with children are suitable to do so.[6] Guiding this decision are the principles that that that the welfare and the best interests of a child are paramount,[7] and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing’.[8]
- [6]Where there is a conviction for an offence, the factors stated at s 226 WWC Act must be considered in determining whether an exceptional case exists. These are not an exhaustive list of considerations and other factors may be taken into account.[9] The Tribunal must at all times be guided by the paramount principle that the welfare and best interests of a child are paramount, which is the principle to which all other yield.[10] Any hardship caused to the applicant is not a relevant consideration.[11] However, the Tribunal must also act in a way compatible with human rights,[12]and can only limit a human right where it reasonable and demonstrably justifiable.[13]
- [7]In determining whether an exceptional case exists where there is a charge, the relevant factors stated at s 226 WWC Act must be taken into consideration: (note s 226(2)(b)-(e)) are not relevant here:
- (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;
….
- (f)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.
Consideration of S 226 Factors
- [8]JDW has convictions for drug related offences as follows:
- (a)One count of possession of dangerous drugs on 12 January 2021
- (b)Four counts of supplying dangerous drugs on 10 August 2020; 14 September 2020, between 27 October 2020 and 1 November 2020; and between 27 December 2020, and 30 December 2020.
- (c)One count of possessing anything used in the commission of a crime defined in Part 2, on 12 January 2021.
- (d)One count of possession of property suspected to have been used in connection with a drug offence on 12 January 2021,
- (e)One count of receiving tainted property between 10 August 2020 and 30 December 2020.
- (a)
- [9]JDW pleaded guilty to these offences.
- [10]He was charged with possession of property suspected being proceeds of an offence under Drugs Misuse Act, however no evidence to offer was put forward from the prosecution and he was discharged of these.
- [11]These offences are not classified as serious or disqualifying within the meaning of the WWC[14]. However, all aspects of a persons’ criminal history are relevant in considering suitability to work with children.[15] The convictions relate to offending which occurred between August 2020 and January 2021.
The nature of the offence and the relevance to employment or carrying on a business that may involve children.
- [12]The nature of the offences are detailed in the police brief and charge sequencing report[16] which states that the police acting under a search warrant located in JDW’s house located approximately $12000 in cash and two capsules of MDMA, found JDW’s room,[17] A clip seal bag with “18 grams of white powder” on JDW’s bedside table, together with a set of digital scales which had white powder smeared on them,[18] two spoons with white powder residue, a small quantity of clip seal bags and two extra-large clip seal bags containing remnants of cannabis and $11,650 in cash. Evidence located on JDW’s phone indicated that JDW had supplied $50 of cannabis on three occasions. JDW’s phone records downloaded by the police indicate that third parties made requests to JDW for a substance referred to as white stuff, and that was supplied[19]for an amount understood to be 4 grams for $1170.
- [13]The Police brief states that the police believed the “white stuff” is code for cocaine, and the brief alleged that JDW. In the material before the sentencing judge, clarification of this drugs identity was not provided, and he was sentenced on the basis of the material before the magistrate. The nature of this drug remains unknown.
- [14]The sentencing Magistrate did not accept that the drugs for which he pleaded guilty to supplying at a cost of $1170 was cannabis, saying:
“the suggestion that anyone would pay $1170 for four grams of cannabis is ridiculous, particularly if you have been supplying $50 to the same person. ….Of course if wasn’t cannabis… we don’t know what it was.”[20]
- [15]In oral evidence JDW gave contradictory and obscure evidence as to the nature of the white powder, firstly telling the Tribunal that it was code for another form of cannabis, and later, that he did not know what the drugs were, since he only packaged them and gave them to others, not knowing what they were. He further told the tribunal that he did not know this because he acted only as “the middleman”.
- [16]The full nature of JDW’s distribution of dangerous drugs, has not been able to be fully determined, and I consider that JDW did not co-operate with the Tribunal in identifying this drug. The Tribunal was impeded in assessing the full nature of the circumstances relevant to JDW’s risk to children. Notwithstanding this, the offences and the circumstances generate several concerns relevant to child related employment screening.
- [17]JDW acknowledged that he was using drugs and dealing drugs at the time that JDW was coaching children.[21]Those children were aged between 6 and 16 years.[22] While the offences themselves do not directly involve children, the possession, use and distribution of drugs in the community can indirectly impact children in several ways. The harmful effects drugs have on users who may interact with or provide care to children is well established. JDW reported that he acknowledged and was now aware of this impact, although he did not appreciate this at the time. He claims to have done self refection over two years since, and gained an appreciation of these risks in discussion with a psychologist (witness DZ).
- [18]Further, supplying and using drugs casts JDW as a very poor role model while coaching children between the age of 6 and 16. JDW in evidence accepted that dealing drugs made him a “poor role model”, however, implored the Tribunal to see how he, with his changes made over the past two years, was now a positive role model having spent time in self-reflection and now focused on healthy living and positive peers and relationships. The Tribunal has concerns however, that over a prolonged period of time, JDW was a coach in a sports-based youth development leadership role yet disregarded the law and the safety of the community by his conduct. His convictions for use and supply of illicit drugs, whatever their form, when a coach of children sport, compromises children’s sense of what is expected about compliance with the law. A coach is in a position of trust and responsibility and holds a position of respect. What a coach models to children by conduct and attitude affects children’s appreciation of right and wrong. JDW, in using and supplying drugs has not taken the very serious obligations of a role model that his role as coach requires. This weighs very heavily against his suitability to work with children.
- [19]The sentencing magistrate clearly considered that the evidence had indicated that the nature of the offence was at a higher level of seriousness than the was able to be dealt with by the Magistrates court. Deficits in the criminal justice process appear to be responsible for the matter being heard in the Magistrates Court, rather than a higher court. Further to the previous comment, the sentencing Magistrate said this:
“Really the only reason I am telling you this is that I am not sentencing you on the basis of what you supplied because I don’t know what the drug was. I’m not told what it was. I have my suspicions but my suspicions are irrelevant. What’s important for you to understand is that – if it was, for example MDMA, which was some of the drugs found in your possession, and that sort of price would probably be right for MDMA, or perhaps methamphetamine, - if it was either of those, then the matter couldn’t be dealt with by this court. You’d be off to a higher court and you’d be at grave risk of a jail sentence. ..
…I suspect the police have bent over backwards to be nice to you for some reason… so they can make sure that it can be dealt with here and you are not in danger of being locked up. And if that is the case, you should be eternally grateful to the police who were involved in that , but whatever way you cut the cake, it’s not cannabis.”[23]
- [20]JDW was fined $1000 as penalty for his conviction. However, the penalty was limited by the magistrate’s jurisdiction, and the police material presented. Very clearly, the magistrate considered the conduct more serious than the penalty allowed.
- [21]The Tribunal will not engage in conjecture, but it is significant that the identity of the drug is not before the Tribunal. JDW did not assist the Tribunal to understand what it was. However, the Tribunal finds it gravely concerning that JDW informed the Tribunal that he was distributing a drug whose identity he did not know, without apparent regard for the safety of children or the community at large.
Other relevant considerations
- (i)Extent of drug use
- [22]JDW has given evidence that he used MDMA recreationally approximately 20 times a year when he would take 1-2 caps on each occasion, usually on big occasions like birthdays. He further confirmed that throughout the period of this drug use, he was employed in child related employment.
- (ii)Insight
- (ii)
- [23]JDW told the Tribunal, that after significant self-reflection and input from psychologists, that he understood the impact of his offences and risk it posed to the community and children. Specifically, he stated that there were risks in “psychotic episodes and everything in between.” He stated that there was a web beyond the individual that it can impact and he now appreciates that. He accepted that he was a poor role model to the children he coached, but argued that his current drug free life and health focused lifestyle would enable him to be a good role model in the future.
- [24]This presents as partial insight. Importantly, no insight was demonstrated when he told the Tribunal that he did not know what the drug was that he was supplying. It is of great concern that he would act with abject disregard for the safety of the community by supplying to drug of which he knows nothing about, and which may be accompanied by significant risks to the community. He did not reflect upon this when asked to discuss the risks associated with his drug supply and is not accepted that he has insight into the impact his conduct.
Witnesses Evidence
- [25]DZ clinical psychiatrist who has had 5 sessions with RDW between March and June 2022 informed the Tribunal that in her view JDW was a low risk of re-offending. DZ used 2 tests to assess his risk of reoffending. She advised that a Personality Assessment Inventory revealed that no psychopathology was evident. DZ stated that this would provide evidence of whether a diagnosable condition within the DSM V was present such as substance abuse disorder or personality disorder and the results found in the negative.
- [26]DZ also undertook a Tobacco Alcohol, Prescription Medication and Other Substance Use Tool, (TAPS) which she indicated was a self-reporting-based assessment which screens for frequency of substance abuse and assesses substances “of the past three months problem use.”[24] She stated that the results indicated that RDW was at minimal risk of drug use and high risk of alcohol use.
- [27]ZD also gave evidence that, based on her contacts with JDW over the 5 sessions she formed the view that he was remorseful for his actions. She told the Tribunal that he knowledge of the offending was that he had not been convicted, only fined, and only for drugs found in his home from New Year’s eve.
- [28]DZ’s oral evidence indicated that she was not aware that he had been convicted of supply and understood the nature of his drug use to have been limited to possession on one occasion. DZ had not been provided with the full history of drug use as given in JDW’s evidence, and the weight given to her opinion as to JDW’s remorse and insight must be limited. However, the weight of this evidence is limited where the TAPS Test is limited to self report within a three month period, prior to June 2022, and the outcome of the PAI can only indicate that he does not have a diagnosable condition of a substance disorder. I accept this to be the case, and all that can be drawn from DZ’s evidence in the absence of full disclosure of the details of the offences.
- [29]JDW’s drew his other witnesses from his friendship employment and family networks. These witnesses all confirmed that they would support him to receive a blue card even with the knowledge that he supplied over $1000 in drugs in one incident.
- [30]BP is JDW’s employer at the sporting association. He has known JDW through sport for 7 years and has employed him since 2017. He indicated full support for JDW to continue to work with children. He stated that he was a well-regarded employee and would be a loss to the organisation if he were unable to hold a blue card. he made it clear that he would like JDW to return to work with children, despite the drug supply and possession offences.
- [31]BP did not have full knowledge of the extent of drug use that JDW had engaged in indicating that he was shocked that he had been using at the time. He guessed that JDW may have a pattern of use of 1-3 times per year. He was aware of his supply convictions but unaware of the nature. BP noted that JDW had been operating youth development programs with children aged 6-16 and was considered very capable and well regarded by all involved.
- [32]BP was asked if he considered that there may be concerns expressed by parents of children that someone convicted of supplying drugs was coaching children. He considered it “potentially” may be of concern to some parents, but he did not appear to place significant weight on this, emphasising the JDW was “loved and respected” by all involved in the organisation. He stated that he considered that JDW was a positive role model and repeated that he was “extremely respected in the community.” BP’s evidence can be afforded limited weight in light of his lack of knowledge of the full nature of the drug related activity.
- [33]RR is a colleague and friend, knowing JDW in a personal capacity for 10 years through sport for some time, and later working with him at the sporting association and now in a comparable role as regional manager. He advised of his full support for JDW.
- [34]RR did not accept that JDW had supplied drugs, despite what he referred to as numerous conversations with JDW about his offences[25] He commented strongly of JDW’s skills in working with children that he has directly observed and commented that he is widely respected across the sport and community. He stated that JDW had matured since the offences, no longer being in the “party phase” that he had been in his early 20s. RR considered that JDW had a high level of skills working with children, he was kind and courteous and children felt very comfortable with him.
- [35]Friends EL described him as a fantastic role model, and she had observed that he had engaged with children well and maintained professional boundaries. She was not involved in his drug related social life and has never seen him do drugs or supply drugs.
- [36]Partner EH has known JDW for 15-16 months. She was aware of the offences although not the details of what he supplied. She described him as having moved on from a party lifestyle of the past, and now is now focused on playing sport and connecting with friends that are not in the party scene, and generally living an active, healthy life.
- [37]Aunt KS has known JDW all of his life and gave evidence that he “lost track” for a period in his life, but that is behind him, and she believes based on conversations that she has had with him, that he didn’t like who he was when he engaged in the drug related activity. She was not aware how long he was involved with drugs but considered it was more than a few months. She said he did not like what he saw in his behaviour and is committed to becoming a better person. She said she is aware that he understands the grave nature of what he did, and wholeheartedly has put it behind him and she states that she has witnessed that change in him.
Findings
- [38]The evidence of JDW’s witnesses paints a picture of a person who has matured from past behaviour. A consistent picture emerges from his witness evidence that he now has positive associations and has moved away from past negative influences and has a commitment to a healthy and active lifestyle. These are all protective factors in his favour. Each of JDW’s friends’ family and employers considered he should work with children despite having supplied in excess of $1000 worth of drugs in one transaction.
- [39]JDW’s skills with working children and high regard of his employer is acknowledged, noted from the evidence of BP an RR. However, special skills in working with children are not however a relevant consideration if it is not in the best interest of children for the applicant to be issued a blue card.[26]
- [40]I find the evidence indicates that JDW consumed illicit drugs for a period through 2020 when he was a coach of children and youth in a sporting association. I find that over a period from August 2020- January 2021, while he was a coach of children, he supplied cannabis and an unknown drug in exchange for money. The sentencing magistrate did not accept that the drug he supplied identified as white stuff was cannabis, and considered he could have be liable to a more severe penalty had all the information been before the court.
- [41]JDW’s witnesses gave evidence indicative of protective factors including a high level of respect and regard, stable relationships, changed peer group, and maturing attitude to life which has deviated from a former drug based- “party” lifestyle consistently mentioned in the evidence. I accept this to be the case. These protective factors exist in his favour where evidence does reflect a peer group and lifestyle change in recognition of these serious consequences to his conduct.
- [42]However, I find that the evidence indicates that risk factors also coexist with these protective factors. On his own evidence JDW’s preparedness to distribute within the community an unknown drug as a middleman with no appreciation or care for its impact on third parties, gravely concerns the Tribunal. He demonstrated no insight into the dangers of this conduct in his evidence. Further, his disregard of the position of trust and responsibility as role model that he had while working with children, and contemporaneously supplying drugs is a significant risk factor that weighs heavily against him.
- [43]JDW asks the Tribunal to give him a “second chance”. The Tribunal’s function is to apply the legislation whose primary objective is the protection of children in employment screening decisions. Second chances are irrelevant where children’s best interests are the basis of determining whether an exceptional case exists.
- [44]Having regard to these findings, the s 226 considerations, the risk and protective factors, on the balance of probabilities I am satisfied that this is an exceptional case in which it would not be in the best interests of children for the applicant to be issued a blue card. The decision of the Respondent that an exceptional case exists is confirmed.
- [45]I have had regard JDW’s Human rights which could be limited by this decision. It may be that JDW’s rights to equality before the law,[27] privacy and reputation[28] to take part in public life,[29] and to further vocational education and training may be limited by a negative notice issuing. Human Rights may only be limited if it reasonable and justifiable within the meaning of s 13 Human Rights Act. Given that the purpose of the decision made under the WWC Act is to screen for suitability to work with children, and this Act specifies children’s interest must be paramount[30] and requires decision making that promotes children ‘s entitlements to be cared for in a way that protects them from harm and promotes their wellbeing,[31] I am satisfied that it is reasonable and justifiable to limit these rights in order to promote the best interests and protection of children. I am satisfied that I have acted compatibility with human rights as I am obliged to do.[32]
- [46]It is not in the interests of a child for the identity of JDW or his witnesses to be made public in circumstances. The Queensland Civil and Administrative Tribunal Act 2009 (Qld) allows for the making of a non-publication order where it is not in the interests of justice.[33] I am satisfied that identifying the applicant would not be in the interests of justice. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of any information that could lead to the identification of the applicant or his witnesses and accordingly these reasons have been deidentified.
Footnotes
[1] Filed 22 December 2021.
[2] Filed 1 February 2022.
[3] Statement of Evidence filed 24 June 2022, Exhibit 1.
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 19(a) s 20.
[5] QCAT Act s 20.
[6] WWC Act, s 5 B; WJ v Chief Executive Officer Public Safety Business Agency [2015] QCATA 190 [70].
[7] WWC Act, s 6, s 360.
[8] WWC Act s 6.
[9] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
[10] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
[11] Chief Executive Officer for Child Protection v Scott[ no 2] [2008] WASCA 171 {109}.
[12] Human Rights Act 2019 (Qld), s 58.
[13] Human Rights Act 2019 (Qld), s 13.
[14] WWC Act Schedules 2, 4, 5.
[15] Explanatory notes to the Commission for Children and Young People Bill 2000, p11.
[16] NTP 1-25.
[17] BCS 42-43.
[18] BCS 62.
[19] Applicant’s Oral evidence.
[20] BCS 72.
[21] Applicant’s oral evidence.
[22] Oral evidence of BP.
[23] BCS 70-72.
[24] Statement of ZD, at Applicant Statement of Evidence, Annexure 1.
[25] Statement of RB dated Exhibit 1.
[26] Grindrod v Chief Executive Department of Community Development [2008] WSAT 289, [33].
[27] Human Rights Act 2019 (Qld) s 15.
[28] Human Rights Act 2019 (Qld) s 25
[29] Human Rights Act 2019 (Qld) s 23.
[30] WWC Act s 360.
[31] WWC Act s 6.
[32] Human Rights Act 2019 (Qld) s 58.
[33] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66.