JBS v Director General Department of Justice and Attorney-General
[2023] QCAT 422
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- JBS v Director General Department of Justice and Attorney-General[2023] QCAT 422
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JBS v Director General Department of Justice and Attorney-General[2023] QCAT 422
JBS v Director General Department of Justice and Attorney-General[2023] QCAT 422
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | JBS v Director General Department of Justice and Attorney-General [2023] QCAT 422 |
PARTIES: | JBS (applicant) v DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) |
APPLICATION NO/S: | CML033-22 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 20 October 2023 |
HEARING DATE: | 13 March 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Davies |
ORDERS: |
|
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 – application for review of decision to issue negative notice – where applicant has convictions and charges – where the offences were not serious or disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether this is an exceptional case in which it would not be in the best interests of children for the applicant to be given a working with children clearance Human Rights Act 2019 (Qld), s 25, s 26, s 31, s 38 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 172, s 221, s 226, s 353, s 360 Briginshaw v Briginshaw (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 [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 DAN v Director General, Department of Justice and Attorney-General [2021] QCAT 229 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6 ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | L Ingham Myers, Solicitor, IM Lawyers |
Respondent: | J Capper Legal Officer, Department of Justice and Attorney-General |
REASONS FOR DECISION
Introduction
- [1]In 2021 the Applicant (JBS) applied to the Respondent (Blue Card Services) for the issue of a working with children clearance (also referred to as a blue card). The issue of a blue card is governed by the provision of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act).
- [2]JBS made this application so that she could undertake child-related employment. In isolation, her application was unremarkable as JBS had previously been issued, with a series of blue cards in the period 2005 to 2014.
- [3]However, JBS’s circumstances had changed. Between late 2017 and late 2018 JBS engaged in conduct that gave rise to her being charged with four drug related offences. These charges came before the Queensland Supreme Court in early 2020. JBS pleaded guilty and was convicted on all charges.
- [4]In considering JBS’s 2021 application, Blue Card Services formed the preliminary view that, in view of these changed circumstances, her case was exceptional and proposed to issue her with a negative notice. This preliminary view was conveyed to JBS and she was invited to make submissions as to whether her case was exceptional. JBS made some further submissions in support of her application.
- [5]After assessing JBS’s case, Blue Card Services issued JBS with a negative notice. This decision (the Negative Notice Decision) and the reasons for it were set out in a written notice to JBS dated 11 January 2022.
- [6]On 28 January 2022 JBS filed an application in this Tribunal to review the Negative Notice Decision.
- [7]In essence, JBS by her applications contends that her case is not ‘exceptional’ and, as a result, she should be able to hold a blue card.
- [8]For the reasons set out below, I consider that JBS’s situation is not exceptional.
Legislative framework and role of Tribunal
- [9]The parties are not in dispute as to the legislative framework governing this review. In closing oral submissions, the legal representative of JBS adopted, as a correct summary of the legislative framework, the written submissions of Blue Card Services as to the relevant law to be applied.[1] Nonetheless, it is appropriate to summarise the key aspects of the legislative framework to give some context to the decision in this matter.
- [10]The principal legislation, relevant to a review by this Tribunal of the Negative Notice Decision are the WWC Act – under which the Negative Notice Decision was made – and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) – under which the Tribunal exercises its review jurisdiction.
- [11]The object of the WWC Act is promote and protect the rights, interests, and wellbeing of children and young people in Queensland. It does this by a scheme requiring the development and implementation of risk management strategies and for the screening of persons.[2]
- [12]The Negative Notice Decision is a reviewable decision under the WWC Act. Specifically, it is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act.
- [13]The purpose of a review by this Tribunal of the Negative Notice Decision is to produce the correct and preferable decision.[3] In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.[4] That is to say, this Tribunal must come to a decision on the evidence before it.
- [14]Further, in deciding this matter, this Tribunal has all the functions of the original decision maker. In exercising the functions of the original decision maker, this Tribunal is, like the original decision maker, guided by the principles set out in the WWC Act.
- [15]Those principles are, in summary, that the welfare and best interests of a child are paramount 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.[5]
- [16]The WWC Act provides, as a starting point, that a person in the position of the JBS should be allowed to hold a blue card unless that person’s situation constitutes an ‘exceptional’ case.
- [17]In conducting this review of the Negative Notice Decision, the principal issue for determination is whether an ‘exceptional’ case exists. That is, whether JBS’s situation is such that it would not be in the best of children for a positive notice to be issued.[6]
- [18]The term ‘exceptional case’ is not specifically defined in the WWC Act. As to what constitutes an exceptional case is a question of fact and degree having regard to the intent and purpose of the legislation. Further, it is a term of common use in everyday language and the application of the concept of exceptional case should be unhampered by any special meaning or interpretation.[7]
- [19]In determining whether the JBS’s circumstances constitute an exceptional case it is necessary, under the WWC Act, to consider:
- The principles for the administration of the WWC Act discussed above.
- The matters that the WWC Act mandates must be considered. Relevantly, these matters are set out in ss 226(2) of the WWC Act.
- Any other matters that are relevant to the decision.[8]
- [20]Further, in coming to a decision this Tribunal must consider a human right relevant to the decision.[9] This is because in a review such as this, the Tribunal is a ‘public entity’ and is therefore required to comply with s 58 of the Human Rights Act 2019 (Qld) (HRA). Subject to some presently irrelevant exceptions, that section prohibits a public entity from making a decision that is not compatible with human rights or without considering human rights that are relevant to the decision. The human rights that are relevant to JBS include the right to privacy and reputation[10] and the right to a fair hearing.[11] The human rights of children are also relevant to this review. Those rights relevantly are that every child has the right to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child.’[12]
- [21]The Tribunal is required to determine whether an exceptional case exists after evaluating all the available evidence before it.[13] In this matter, there was evidence before the Tribunal that was not before Blue Card Services when the Negative Notice Decision was made.
Evidence
- [22]JBS’s documentary evidence in support of her application consisted of her personal history or life story,[14] a timeline of events[15] a drug screening test[16] and witness statements (or letters of support) from four individuals.[17] These four individuals, along with JBS gave oral evidence. This documentary evidence was supported by written submissions.[18]
- [23]The written material put before the Tribunal by Blue Card Services consisted of a document setting out the reasons for the Negative Notice Decision and accompanying material relating to JBS’s criminal history including information from the Queensland Police Service and sentencing remarks[19] together with material obtained by Blue Card Services pursuant to a notice to produce.[20] This documentary material was supported by a set of comprehensive written submissions.[21]
Do JBS’s circumstances constitute an ‘exceptional case’?
- [24]Paragraph [19] above sets out a framework for considering if JBS’s case is exceptional.
- [25]As to the principles for the administration of the WWC Act, these are mentioned at paragraph [15] above.
- [26]With these principles providing guidance, it is appropriate to turn to the matters that the WWC Act, in s 226, mandates that the Tribunal must have regard when deciding if an exceptional case exists. Those matters (the s 226 matters) are, in summary:
- Whether the offences are convictions or charges;
- Whether the offences are serious or disqualifying offence;
- When the offences were committed;
- The nature of the offences and their relevance to employment or carrying on a business that involves or may involve children;
- In the case of a conviction – the penalty imposed by the court.
s 226 matters
- [27]It is not in dispute that JBS has been convicted of four offences. They are supplying dangerous drugs, possessing dangerous drugs, unlawful possession of weapons and possessing anything used in the commission of a crime.
- [28]It is also not in dispute that these offences are neither serious nor disqualifying offences as those terms are defined in the WWC Act. The offences were committed between December 2017 and October 2018.
- [29]On pleading guilty, JBS was sentenced, in the Queensland Supreme Court, in early 2020. The sentence imposed was a two-year probation order with no conviction recorded. The comments of the sentencing judge are in evidence before the Tribunal. JBS’s submissions place emphasis on some of the comments made by the sentencing judge for imposing the non-custodial penalty and to not record a conviction. In particular, the recognition by the judge that JBS’s offending, and conviction will not be an absolute obstacle to finding employment involving children.[22] Blue Card Services submit, and I accept, that the sentencing judge was not required to consider the WWC Act. Rather, the judge was addressing JBS’s specific circumstances in relation to her offending. Nonetheless, the sentencing judge’s remarks show that he was of the view that JBS had good prospects of rehabilitation and that a non-custodial was not appropriate.
- [30]The mandatory matters outlined in the preceding three paragraphs supply context for consideration of what is the central s 226 issue, namely the nature of the offences and their relevance to working with children.
- [31]Blue Card Services contend that circumstances of JBS’s offending raises questions about JBS’s ability to provide children with a protective environment. Blue Card Services submit that the presence of dangerous drugs and drug paraphernalia and weapons in areas of her home accessible by children is inconsistent with the behaviour needed to provide a protective environment for children. Further, Blue Card Services submit that JBS’s offending behaviour shows a disrespect for the law and is indicative of a failure to give priority to the interests of children over her own interests.
- [32]JBS accepts the proposition that drug use may affect a person’s ability to work with children and that the offences that she has been convicted of are relevant to her employment that may involve children.[23] This is an appropriate concession given that the paramount consideration under the WWC Act is the welfare and best interests of children and that any hardship or prejudice to JBS is irrelevant in deciding this proceeding.[24]
- [33]It is submitted for JBS that the behaviour that gave rise to the charges and conviction was isolated and that other than the convictions referred to above her record is ‘clean.’ In addition, JBS’s evidence is that her conduct was a lapse of judgement that was born out of her misguided desire to assist her partner control his drug habit.
Other relevant matters
- [34]There is no evidence before the Tribunal that JBS has further offended. To that extent the hope expressed by the sentencing judge seems to have borne fruit. However, for JBS to simply conduct herself in a manner expected of all other members of society is not a matter that, of itself, is remarkable. Nonetheless, considering the evidence, I am of the view that JBS’s prospects of re-offending are minor.
- [35]Consideration also needs to be given to other relevant factors to determine if JBS’s case is exceptional. Other relevant factors that were emphasised by the representatives of the parties both in the hearing and in written submissions, can be summarised as:
- The circumstances of JBS’s offending, given that it involved use, possession and supplying cocaine.
- Whether JBS has insight into her behaviours and the impacts on others (including children).
- Whether JBS has an effective support network such that it acts as a protective factor.
- JBS’s post-conviction conduct in relation to such matters as employment and education.
- [36]In her oral evidence JBS stated that she was remorseful for the conduct that gave rise to her convictions. I accept that she showed genuine remorse. Nonetheless, it is of concern that the circumstances of her conviction show that she was complicit in the possession, distribution, and use of illicit drugs and, further, that her offences took place in a home that she shared with her two children.
- [37]As to the question of insight, Blue Card Services submit that JBS lacks insight into her behaviour that gave rise to the charges she faced and has sought to minimise her involvement in the events that gave rise to her facing criminal charges. I consider that in her oral evidence, aside from some quibbles regarding the factual matrix that gave rise to her charges and convictions, JBS demonstrated she does have insight into the seriousness of her offending and has sought to put in place practices, in relation to her domestic situation, that minimises the prospect of a repetition of the behaviour that gave rise to her offending.
- [38]As to JBS’s support network, I have considered the evidence of her father and other members of what could be described as her support network. All these witnesses gave evidence that was supportive of JBS. They all had knowledge of JBS’s charges and convictions. I am persuaded that these witnesses could and do provide appropriate support to JBS. I note that JBS’s father who attended at her sentencing in the Supreme Court and gave evidence in this hearing is and should continue to be of support to JBS.
- [39]As to JBS’s post-conviction conduct, there are several positive factors. These are that she participated in her probation programme, including undertaking a relapse prevention plan, she worked in and indeed ran, the business that she and her partner conducted whilst her partner was incarcerated and obtained a certificate in building and construction during that time and that she has commenced and to the extent possible, has partially completed a university degree in nursing.
Conclusion
- [40]The guiding principle for deciding whether JBS’s case is exceptional is the welfare and best interests of a child. This paramount principle supports a precautionary approach to a consideration of JBS’s case.
- [41]Nonetheless, after evaluating the evidence before the Tribunal, I have come to the view that JBS’s case is not exceptional.
- [42]The basis on which I have come to this decision is that, although there are aspects of JBS’s position that are of some concern, her offences are not serious offences and I consider that her insight into her offending, her remorse and her post-conviction conduct negates the proposition that her position is exceptional.
Non-publication order
- [43]The Tribunal has the power to make an order prohibiting the publication of certain information including information that may enable a person to be identified. A non-publication order may be made if the Tribunal considers that such an order is necessary in the interests of justice.[25] After hearing submissions from both parties in support of a non-publication order, I agree that such an order is appropriate. The principal reason that I have come to that view are the identification of JBS could lead to the identification of her children and perhaps other children who have figured in the evidence before the Tribunal.
Footnotes
[1] The summary of the relevant law, as adopted, is set out in Exhibit 3 at paragraphs 11 – 32.
[2] WWC Act s 5.
[3] QCAT Act s 20(1).
[4] QCAT Act s 20(2).
[5] WWC Act ss 6 and 360.
[6] WWC Act s 221(2).
[7] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] – [35].
[8] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
[9] HRA, s 58(1)(b).
[10] HRA, s 25.
[11] HRA, s 31.
[12] HRA, s 26.
[13]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[14] Exhibit 5.
[15] Exhibit 6.
[16] Exhibit 11.
[17] Exhibits 7 – 10.
[18] Exhibit 4.
[19] Exhibit 1.
[20] Exhibit 2.
[21] Exhibit 3.
[22] Exhibit 1at BCS 16.
[23] Exhibit 4, paragraph 5.
[24] Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142, [52]
[25] QCAT Act, s 66.