LK v Director-General, Department of Justice and Attorney-General
[2023] QCAT 99
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- LK v Director-General, Department of Justice and Attorney-General[2023] QCAT 99
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LK v Director-General, Department of Justice and Attorney-General[2023] QCAT 99
LK v Director-General, Department of Justice and Attorney-General[2023] QCAT 99
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | LK v Director-General, Department of Justice and Attorney-General [2023] QCAT 99 |
PARTIES: | LK (applicant) v DIRECToR-GENERAL, DEPARTMENT OF jUSTICE AND ATTORNY-GENERAL (respondent) |
APPLICATION NO/S: | CML002-22 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 14 March 2023 |
HEARING DATE: | 10 March 2023 |
HEARD AT: | Southport and Brisbane |
DECISION OF: | Member McDonald |
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 – where issue of negative notice – application for review – where applicant has charge – where applicant is medicinal cannabis user – application of s 226 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: | LK- self represented. |
Respondent: | Sanders A, Legal Officer Blue Card Services |
REASONS FOR DECISION
- [1]LK is a 41 year old man with a child now aged 12 years for whom he is sole carer. He was working as a teacher’s aide in a special school when his blue card was cancelled. He has work related back injuries which cause him chronic and severe back pain.[1] He has had three blue cards issued since 2010, the most recent, issued on 2 October 2019, [2]which was cancelled when his police information changed following a conviction for producing and possessing dangerous drugs and possessing anything used in commission of a crime. The drugs were a quantity of marijuana grown for personal use to manage his pain prior to receiving effective treatment via prescribed medicinal marijuana.
- [2]LK has sought review of the respondent’s decision to issue a negative notice on 9 December 2021 which had determined that his was an exceptional case in which it was not in the best interest of children for him to be issued a positive notice.
- [3]The decision under review is made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), and this enabling act applies to this review. Section 221 states a presumption that the chief executive must issue a positive notice to a person, unless it is satisfied that in which it would not be in the best interest of children for the chief executive to issue a positive notice.
- [4]LK provided the Tribunal with a life story, His statement of Evidence contained letter from Dr R, medicinal cannabis prescribing doctor, and psychologist DR. He provided written and oral submissions to the Tribunal.
- [5]The respondent provided documents marked BCS 1-61, and NTP 134 - which included material produced under a notice to produce by the Department of Children, Youth and Multicultural Affairs “Child Safety”. The respondent also provided written and oral submissions.
- [6]The review of this decision must be conducted within the requirements of the Queensland Civil and Administrative Tribunal and apply the relevant provisions of the Working with Children Act. The purpose of a review in the Tribunal’s review jurisdiction is to produce the correct and preferable decision.[3] The Tribunal must conduct a fresh hearing on its merits.[4]
- [7]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.[5] Guiding this decision is the principle that that that the welfare and the best interests of a child are paramount.[6] The Tribunal must also be guided by the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing’.[7]
- [8]Any hardship the applicant may experience is not a relevant consideration, as the primary consideration in determining the is the welfare and best interests of children.
- [9]The central issue for the Tribunal is whether LK’s case is an exceptional case.
- [10]The term ‘exceptional case’ is not defined in the WWC Act. Whether this case is an exceptional case is a question of fact and degree, to be decided in on a case-by-case basis having regard to:
...the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to – children.
- [11]The WWC Act requires the decision maker to consider factors stated at s 226 in determining whether an exceptional case where is information about an offence
- [12]Section 226 Considerations:
- (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;
- (b)any information about the person given to the chief executive under section 318 or 319;
- (c)any report about the person’s mental health given to the chief executive under section 335;
- (d)any information about the person given to the chief executive under section 337 or 338;
- (e)information about the person given to the chief executive under the Disability Services Act 2006 , section 138ZG;
- (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.
- [13]No information is available pursuant to section 221(2)(b)-(e).
- [14]The use of medicinal cannabis is relevant to the commission of the offence which the changed criminal history pertains consideration of this as it relates to s 221(2)(f) is addressed in a separate section.
Application of Section 226(1) (a) considerations
- [15]LK has historical drug offences that were known to blue card services when they issued him a blue card in 2010, 2014, and 2019. These were in 2005 for trafficking amphetamine where he was fined “without conviction” and 2008 for producing dangerous drugs, possessing dangerous drugs and possessing utensils pipe that had been used. Blue card services were aware of these offences when he was issued a blue card in 2010,2014, 2019.
- [16]The new police information relates to a conviction for producing possessing and possessing anything used in the commission of a crime.
- [17]None of these are serious or disqualifying offences.[8] The historical offences were committed16 and 18 years ago[9] between and LK since been issued multiple blue cards despite these offences. The most recent offence was committed in May 2021, in the months prior to him being prescribed medicinal marijuana for his chronic pain.
- [18]The circumstances of the drug offences are as follows:
- (a)2005 offence: The police brief states that, while a member of the defence force at the time, between 12 and 2 am in the vicinity of the naval base, and agreed to supply one ecstasy tablet to the seaman in exchange for a carton of beer.[10] The LK gave evidence that he passed one ecstasy table to friend at a club because he didn’t want it, and was charged for trafficking.
- (b)The 2007 offences relate to growing and possessing marijuana for personal use.. The police brief indicates that as “small amount” 2 grams of cannabis and approximately 37 cannabis plants ranging from 20cm to 150 cms in height growing in plots adjacent to the defendant property. [11]
- (c)In 2021, the Police brief police brief details that records the police search locating four small plants and 11seedlings in a grow tent together with a grow light, extraction fan carbon filter, LED lights ducting and seedling, and 3 small plants on the back patio. LK is reported to have told the police that he was growing and harvesting cannabis to supplement the medical program due to the prohibitive cost.[12]. Equipment related to the production of cannabis including a carbon filter an extraction fan, LED lights ballast, fan and ducting seedling trays and grow light were found and the brief notes were destroyed by the police. LK is recorded to have advised police that he was growing to supplement his medicinal program and presented a current script to the police.[13]
- (a)
- [19]The earlier offences were committed prior to LK having a child or working with children. Despite this, three drug related offences may, at first instance raise questions about his suitability to work with children.
- [20]LK’s evidence is that he no longer grows or uses marijuana as he only did do to manage his chronic pain, and this is now, after an initial delay, effectively managed under a supervised medical regime through his treating doctor.[14]
- [21]Although LK was found to be producing and possessing cannabis as recently as 2021, the circumstances of the offence in the context of now having gained access to effective pain management[15] in my view mitigates the concerns caused by recency of the offence.
- [22]In sentencing for the 2021 offences, Magistrate Maloney imposed a fine of $1000 with no conviction recorded, saying:
“Well, you have not been in trouble for 13 years. A fine is still appropriate. You have gone to some trouble, but there is background to this where you are really just trying to supplement your lawful use of medicinal use… but it is still…an offence… so the penalty I am going to impose is a lot lesser than what would I normally impose for somebody who is producing… but it is still going to be reflecting the offending.”[16]
- [23]The earlier offences contain no details why the magistrate fined LK and ordered no conviction to be recorded. For each offence he was fined with no conviction recorded.
- [24]The information that is available to the Tribunal indicates a clear decision to provide a lesser penalty due to the circumstances of the offence.
Section 221(2)(f) considerations – Other information relevant to the conviction
Current use of marijuana – Medicinal Cannabis use
- [25]It is LK’s evidence that he now only uses prescribed medicinal marijuana under the Special Access Program for his pain. He stated that at the time of his offences, the new medication fell short of his pain management requirements, and he had temporarily met this shortfall by his production of marijuana to supplement this gap. He explained the details around the shortfall at the time of the offending as follows:
- [26]An application to the special access scheme was lodged in February 2021.[17] LK told the Tribunal that upon commencing medication, he was initially prescribed a maximum of 20 grams per month at a low dose of 17-20 per cent of Tetrahydrocannabinol (THC)[18] part of an initial transition to his medication regime.[19] He said “you have to start on a lower strength … only 20 grams for the whole month. He stated that this dosage was inadequate to effectively manage his pain, requiring 1 gram per day, a dosage shortfall he claimed of 20 grams per month[20] which had been he supplemented this with plants her grew for personal us to manage his pain.[21] He has since been prescribed 30 grams a month at a dosage rate of 30% which now effectively manages his pain.[22]
- [27]LK gave evidence that the initial dosage was not helping in the first month, as the dosage was not strong enough. He said with the subsequent increased the strength of the substance to the T25 from November 2021, he has had to use less quantity to manage his pain. He has claims there is no longer any need to supplement his pain management with illicit drug production with the prescribed medication ultimately now regulating is pain.
- [28]LK gave evidence that he had tried multiple forms of pain relief to address his chronic pain prior to being referred for medicinal cannabis in February 2021. DR R ‘s letter notes that LK’s health summary and health record identify ‘multiple registered medications with insignificant effect/could not tolerate” and he has found morphine, Effexor, ibuprofen Panadol osteo, paracetamol. Ibuprofen, Panadeine forte all ineffective, and current medications having limited effect.[23] Dr R notes that LK that he was vaping cannabis regularly and making his own oil and cookies. LK in oral evidence stated that he was now no longer doing this as his medication was effective. He said he had previously cooked oils infused with marijuana for their healing properties as massage oils, topically applied, to penetrate isolated pain areas, and that this had been approved by a doctor but that he only now uses the prescribed medication, and this had limited value to his. DR recorded this as being ineffective to manage the pain. I accept that LK making products to support his pain management from illegal substances in the past, raises questions about judgement. I also accept that LK saw this as a reasonable decision in light of the pain, lack of availability of adequate effective alternatives.
- [29]The Respondent asserts that the use of medicinal marijuana poses risks to children because it may affect their ability to care for children as the side effects of THC include tiredness and impaired cognition form the sedative effect. The assertion has been put to the tribunal in the absence of any evidence to support the assertion. Dr R, was not available for questioning at the hearing. The respondent has nonetheless sought to rely on his report throughout their submissions, and there is some probative value in his report in the absence of the oral evidence from the witnesses. LK stated that he was unable to afford to call DR R or NR as a witness. Dr R who is monitoring LK’s medical intervention with prescribed cannabis stated in his open letter that the prescription may impact on driving and heavy machinery and could be side effects. The letter does not express concerns identified about childcare functions or other any daily functions. It makes a vague reference to possible side effects but does not specify. The letter also said that the medicinal marijuana may have no effect.[24]
- [30]The Tribunal rejects the Respondents submission that the report of Dr R is a basis for the Tribunal to find evidence that LK’s ability to provide care to children is adversely affected in his due to his legally prescribed medication.
- [31]The respondent submit LK may drive under the influence of medicinal cannabis, posing risk to children and the public generally. LK’s evidence is that he does not ingest his medicine until his driving obligations are finished in the afternoons after 5pm, and he does not drive after using his medication.
- [32]The respondent also asserts that there is some question that LK has driven a vehicle under the influence of THC, because it can take up to five days for 80-90 % of the dose to be excreted. [25]There is also no evidence before the Tribunal to indicate that while a drug may not be excreted by the body, that a person is likely to be under the influence. There is insufficient evidence before the Tribunal to support contentions made by the Respondent that LK drives a vehicle under the influence of medicinal cannabis.
- [33]The respondent also expressed concerns that his medicinal use may be seen as tacit approval of drugs use to his daughter. [26]LK was growing cannabis in the house where his daughter lives[27]. He gave evidence that he no longer grows and that his daughter was not ever aware that he was growing cannabis in that period, since it was obscured in his wardrobe in a grow tent. He indicated that his daughter is aware that he takes medicine for his pain through his vaporiser as prescribed but he takes steps to keep it away from her, consuming it in the laundry away from her observation, keeping substances and equipment in childproof contained and inaccessible[28]. The respondent contends that the retention of drug paraphernalia (a vaporiser) in the home poses a risk to children and may normalise drug use to a child. The evidence before the Tribunal is that LK’s medicinal use of the substance is prescribed, is an authorised medication under Commonwealth government approved guidelines and available for the management of LK’s chronic pain condition. The possession of a vaporiser cannot be considered to be drug paraphernalia where it is prescribed as a means of ingesting his medication[29] and commonly used and visible in general community use related to tobacco consumption. I do not accept the respondent’s submission that this results in tacit approval of drug use.
- [34]Further, no evidence has been furnished that LK’s medication affects LK’s care giving ability, nor that it makes him tired, nor that it impairs his cognition. The possibility of this is referred to in the respondent submissions, but no evidence of the same. There is evidence before the Tribunal that it may not have any effect[30].
- [35]The Tribunal finds that LK is currently legitimately using the prescribed medicinal marijuana as required and there is no evidence that children are harmed or impacted by his medication use in any way before the Tribunal in this matter.
Child Protection Information
- [36]The Respondent asserts that the child Protection information produced under a notice to produce is relevant information under s 221 WWC Act and for the Tribunal to consider the mandatory factors relating to relevant information pursuant to s 228 WWC Act.
- [37]The chief executive must apply section 228 considerations if:
“other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person.”
- [38]The Tribunal notes that several of the child protection investigations in the material that are submitted to be relevant, relate to the investigation of third parties. I do not consider that this information meets the threshold of ‘relevant information” where it pertains to LK’s ex-partner;[31] a verbal argument between LK and his ex-partner,[32] the mother slapping the child,[33] bruising alleged to have been caused by the maternal grandfather,[34] sexual abuse perpetrated by the mother’s partner where these events occurred outside of the LK’s care.[35] Further, all investigations that the department has undertaken about LK were all unsubstantiated. I do not consider that unsubstantiated allegations are allegations meet the threshold of relevant information. Furthermore, on each of these occasions, over a period since 2013 to 2022, the department determined that the child as safe in the care of LK.
- [39]While it is not apparent that the much of the child protection information presented under the notice to produce meets the threshold for “information reasonably considered relevant and as such I am not required to consider s 228. However, there is some information contained in the child protection material that may be relevant in considering LK’s suitability to work with children, and these as such, other relevant material may be considered.[36]
Other relevant Considerations
- [40]Child protection information that may have some relevance to suitability to work with children relates to information noted in some of the 2022 contact with Child Safety. A notification received on 14 March 2022 that LK’s mother was putting sleeping powder in the child’s food and drugging his food and drink. Concerns that the child had been sexually touched by the paternal grandmother in the house were raised on 11 Amy 2022, Child Safety did not consider it necessary to conduct in Investigation and assessment, recording it as a Child Concern report. LK that the requested Child Safety’s involvement to help his daughter due to these concerns he held. On 15 June 2022, concerns were reported that the child felt unsafe in the house.[37] Later, allegations of the child sleeping in the father’s room were investigated by the department. They put in place a safety plan asking the father to leave the home to undertake the assessment. The results to f the assessment was that allegations of sexual abuse were unsubstantiated. LK told the Tribunal that he had sought the departments assistance via notifications and had taken her into his room to keep her safe from his mother, whom he suspected was inappropriately touching his child. He said since child safety intervention, she does not stay in his room, but continues to hold apprehensions for her safety during night time visits from her grandmother. Child Safety has investigated the child’s safety in the home in this context and has recommended LK access psychology support. LK has attended psychology support for his anxiety from May to October 2022.
Mental Health concerns
- [41]Departmental consideration of a Child safety notification about the allegations of drugging on 9 March 2022 the department posited either there was actual drugging or LK may have signs of paranoia.[38] They said there were “multiple plausible scenario’s” including actual drugging and “possible mental health issues” for (LK).[39] While reports made by LK to Child Safety that his mother was trying to drug him does sound like an unusual and illogical statement, there only is evidence of anxiety, distress and depression as mental health concerns.[40] DR R’s report notes moderate to severe anxiety.[41] There is conjecture from Child safety personnel, but the material before the Tribunal from LK’s mental health professionals does not refer to any paranoia. This is consistent with the medical history in the letter of DR R, who notes his access to LK’s “My health” records and GP referral details.[42] LK has attended on 10 sessions with a psychologist under for counselling and support related to his anxiety distress and depression between 17 March 2022 and 2 October 2022.[43] Conjecture from untrained personnel does not constitute conclusive evidence of mental health problems. There is insufficient evidence before the Tribunal to conclude that that anxiety and depression diagnoses have had any impact on childcare responsibilities.
- [42]LK told the Tribunal that he does not now believe that anyone was trying to drug his daughter. He said he no longer has these thoughts. He does still have concerns that he may have been drugged but said he would never share these concerns with his daughter because to do so would harm her mental health.
- [43]Allegations were made to child safety that LK’s child was sexually abused at home by the paternal grandmother.[44] LK stated that he involved child safety to investigate this concern. Child Safety has assessed the allegations that the grandmother has abused the children as unsubstantiated LK told the Tribunal that he still has concerns for his child’s safety living in that home that he shares with the paternal grandmother, notwithstanding child safety assessing the child was safe in the home.[45] LK has told the Tribunal that he has taken steps to address these concerns by involving child safety initially, and seeking support of multiple community organisations to assist him to relocate the child and family to a more appropriate accommodation to no avail due to the housing crisis in his region. There are multiple complexities around this issue. The first is that Child safety have investigated this concern and have determined that the allegations were unsubstantiated, and the child is safe to live with the father and the paternal grandmother, noting a toxic relationship between the father and paternal grandmother.
- [44]LK gave evidence that he would like to remove the child from the accommodation but has been hamstrung from doing so due to no alternate accommodation being available.[46] He has engaged multiple services on his evidence without outcome due to the very real constraints of a housing crisis within that region. He was able to name 7 community and government support organisations from whom he had sought assistance to relocate himself and his daughter from that home without success due to what he described as a housing availability crisis in his region. LK spoke of his steps to ensure his daughter’s safety given his concerns, which sees that the child is supervised by himself when she is in the home in the waking hours. The intricacies of this dilemma are a complex. However, it is clear that given that Child Safety Services have fully investigated these concerns, and support services have been involved to address the multiple issues arising, the Tribunal is unable to accept that LK is not acting protectively for his own child within the constraints he is faced with. The involvement of Child Safety at LK’s invitation (on his evidence), clearly indicates that they have not considered that LK is a risk of harm to his daughter, nor has failed to act to protect her safety. I find that the evidence indicates LK has made all possible attempts to ensure his child’s safety within the limitations of the circumstances presented to him, and the Department have not assessed that the child has been harmed or is at is at risk of harm in his care.
- [45]All of the child safety material before the Tribunal indicates that investigations as to whether the child in LK’s care has experience harm or is at risk of harm were unsubstantiated. The Respondent submits that a safety plan being put in place means that they held concerns for the child’s safety. The Tribunal does not accept this submission. While a safety plan was put in place during the investigation and assessment phase of the Child safety’s intervention, this was clearly necessary as part of the investigation of allegations made by a third party about LK. The investigation revealed no disclosures of abuse, and clearly the father had to be out of the home in order for the assessment to be carried out. When thoroughly investigated with the child being interviewed and assessed independent to her father, the following week, Child Safety found that the allegations were unsubstantiated.[47] Child Safety has been in the home on multiple times over the years and often due to LK’s concerns about ensuring his child’ s safety with other adults. The department has never on any occasion had cause to intervene due to concerns of harm. Their safety plan which saw LK leave the home for 7 days was clearly in place to allow the assessment to occur without his influence. To suggest a safety plan is indicative of intervention for harm demonstrates a lack of appreciation of the assessment process the department must undertake. I find the evidence of the department of child safety taken as a whole does not show LK poses a risk of harm to his child or children.
- [46]LK’s oral evidence to the Tribunal about his daughter demonstrated a significant dedication to protective action for his daughter. The Tribunal heard that he has taken steps to involve police to investigate the concerns that he has had about potential drugging, and that these are ongoing. Further, that he has engaged in his daughter in programs of support recommended and supported her continued access to these programs and professionals. He has contacted Child Safety of his own initiative on multiple occasions when he has had concerns about his daughter s safety and many of the child safety contacts with his family are at his initiation.[48]
- [47]I find that the evidence does not establish that he has not acted protectively for his child. I accept his evidence that he has been restricted by practical and financial barriers to provide alternate accommodation for his daughter, but has taken steps to ensure his child is physically and safe within the home. environment, by ensuring that contacts between the chid and her grandmother are supervised. He advised that he has requested support from multiple support services around finding alternate accommodation but consistently met with a response that none is available. The evidence indicates that he has engaged and supported his child’s in accessing support services, maintained an ongoing dialogue with her around her support needs, has, identified resources within the child’s network to access and discussed these with the child.[49]
- [48]The evidence further indicates Taken steps to address concerns around his anxiety with the engagement of psychologist, and attendance on DR. Dr MR refers to the referring GP’s health summary and medical background from “my health record’ indicating that he has tried multiple registered mediations but with insignificant effect.
- [49]The evidence does not establish that LK is a risk to children or that he lacks insights into the needs of children. He told the tribunal that despite his concerns that his mother was trying to harm him he would never share that information with his child, because he would not want to damage her mental health.
Insight
- [50]LK has demonstrated an appreciation of the it is not appropriate to grow his own cannabis. He acknowledged this to the sentencing Magistrate. I accept his evidence that he no longer needs to produce his own supply as his reason for use to addressed through his prescription.
- [51]I find that the evidence indicates that:
- (a)LK has acted protectively in relation to his own child at all times within the circumstances, and has engaged multiple social services to support his daughter to support her protection.
- (b)LK’s medicinal cannabis use is authorised, prescribed and monitored by his treating doctor, and there is no evidence that LK’s use of his prescribed medication is adverse to children’s interests.
- (c)LK did produce and use marijuana in small quantities for his personal use to manage chronic pain from workplace injuries for a short period in 2022 to supplement his prescribed medication. He acknowledges the illegality of this and no longer needs to supplement his medication. He is at very low risk of re-offending, where the objective behind self-medication was to manage his pain in the early days of his transition to an adequate pain management regime, and that pain is now managed.
- (d)LK has taken steps to manage his mental health concerns which were identified by his treating doctor to be anxiety distress and depression.
- (a)
- [52]LK has 2 drug offences outside of the most recent in his youth. Blue card service accepted had knowledge of these and issued him three blue cards over time. There is not a likely pattern of substance abuse arising from the last conviction, which appears to be an illegal stop gap measure to manage pain which is now addressed. There is insufficient evidence to conclude that the interests of children are affected by this illegal temporary solution to this issue. His offence was not a serious or disqualifying offence within meaning of the WWC Act. I find, on the facts on which this case turn, on the balance of probabilities, the evidence indicates that Lk is suitable to work with children.
- [53]I have had regard to the paramount principle and find that children’s wellbeing and safety is not compromised by LK. I have considered the transferability of a blue card. I have no concerns about LK working with children in all contexts. I have been mindful that hardship to the applicant is an irrelevant consideration under the WWC Act.
- [54]The Human Rights Act also is at the forefront of this decision. The Tribunal must act in a way that is compatible with human rights. This means ensuring that human rights are not limited or if they are can only be limited where it is reasonable and demonstrably justifiable.[50] In my view it would be unjustifiable to limit LK’s human rights, specifically, the right equality before the law, the right to education and training, and rights to privacy and reputation. In light of the evidence which indicates that children’s interests are not adversely impacted by his endorsement to work in children related employment, there is no reasonable or demonstrably justifiable.
- [55]When acting as a public entity as the Tribunal is in a review of a decision made under section 221 of the WWC Act, the Tribunal is obliged to act in a way that is compatible with human rights.[51] I must give proper regard to any human right which may be affected by the decision[52] and can only limit a human right if it is reasonable and can be demonstrably justified,[53] and I am guided by s 13 (2) Human Rights Act. Multiple Human rights are affected by the decision about suitability to hold a workplace clearance. Rights to equality before the law, [54]privacy and reputation[55] to take part in public life,[56] and to further vocational education and training[57] are affected by this decision. In light of the above findings of fact, it is not reasonable and justifiable to limit any of LK’s human rights, where the evidence does not indicate that it is not in the best interests of children for LK to hold a blue card.
- [56]The decision of the Respondent is set aside and substituted with the decision that there is no exceptional case.
- [57]It is not in the interests of a child for the identity of LK to be made public in circumstances where LK has a child. 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.[58] I am satisfied that identifying the applicant would not be in the interests of justice.
- [58]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 and accordingly these reasons have been deidentified.
Footnotes
[1] Applicant’s Life Story, filed 10 October 2022.
[2] Respondents Submission p 1.
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 19(a) s 20.
[4]QCAT Act s 20.
[5] WWC Act, s 5 B; WJ v Chief Executive Officer Public Safety Business Agency [2015] QCATA 190, [70].
[6] WWC Act, ss 6, 360.
[7] WWC Act s 6.
[8] WWC Act s 226(2)(a)ii; Schedule 2, 4, 5.
[9] BCS 14-15.
[10] BCS 61.
[11] BCS 17.
[12] BCS.
[13] BCS 22.
[14] Dr R Applicant Statement of Evidence.
[15] Applicant oral evidence and Applicant Statement of Evidence, Dr R.
[16] BCS 57-59.
[17] BCS 4.
[18] Applicant submissions filed 27 January 2023, p 5.
[19] BCS 4.
[20] Applicant statement filed 10 October 2022, p 4.
[21] Ibid.
[22] Applicant statement filed 10 October 2022; p 4; Dr R, p 7.
[23] Ibid, p 6.
[24] Ibid.
[25] Respondent's Submission.
[26] Respondent’s Submission, p 24.
[27] Applicant’s Oral Evidence.
[28] Ibid.
[29] Applicant’s Statement of Evidence; Dr R.
[30] Ibid.
[31] NTP 7.
[32] NTP 4, NTP 7.
[33] NTP 17.
[34] NTP 22.
[35] NTP 1-38.
[36]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
[37] NTP 88.
[38] NTP 71.
[39] NTP 115.
[40] Applicant statement of evidence, LK 2 Letter of NR p 8.
[41] Ibid, LK1DR R at p 6.
[42] Ibid.
[43] Letter NR, Psychologist, 2 October 2022, Applicant Witness Statement.
[44] NTP 95; NTP 111.
[45] Applicant’s Oral Evidence.
[46] NTP 106.
[47] NTP 60.
[48] Applicant's Oral Evidence.
[49] Ibid.
[50]Human Rights Act 2019 (Qld), s 13(1).
[51] Ibid, s 58.
[52] Ibid, s 58(5)(a).
[53] Ibid, ss 58, 13.
[54] Ibid, s 15.
[55] Ibid, s 25.
[56] Ibid, s 23.
[57] Ibid, s 36.
[58]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.