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KLT v Director-General, Department of Justice and Attorney-General[2024] QCAT 271

KLT v Director-General, Department of Justice and Attorney-General[2024] QCAT 271

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

KLT v Director-General, Department of Justice and Attorney-General [2024] QCAT 271

PARTIES:

KLT

(applicant)

v

Director-General, Department of Justice and Attorney-General

(respondent)

APPLICATION NO:

CML041-22

MATTER TYPE:

Childrens matters

DELIVERED ON:

4 July 2024

HEARING DATE:

23 October 2023

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

  1. The publication of information that may enable the applicant, members of her family, and others affected by this proceeding to be identified is prohibited.
  2. The decision of the respondent the applicant’s case is “exceptional” within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  3. The application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision to issue a negative notice

CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – application to review a decision to issue a negative notice – where applicant has charges and convictions – where the offences are not serious or disqualifying offences – where there is domestic violence, child safety and other relevant information – where applicant is suffering complex PTSD and other medical conditions – where the applicant has used drugs in the past and is being treated with medicinal cannabis – whether an exceptional case

Disability Services Act 2006 (Qld), s 138ZG

DFVP Act, s 23(3)

Human Rights Act 2019 (Qld), s 13, s 22, s 26, s 48, s 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5 and 6, ss 15 and 16, s 22, s 221, s 226, s 228, ss 318 – 338, ss 353 and 354, s 357, schedule 2, schedule 3, schedule 4, schedule 5, schedule 7

Chief Executive Officer, Department for Child Protection v Grinrod (No. 2) (2008) WASCA 28,

Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171

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

Commissioner for Children and Young People and Child Guardian v Lister (No. 2) [2011] QCATA 87

Commissioner for Children and Young People and Guardian v Maher [2004] QCA 492

Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 34

ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102

IHI v Director General, Department of Justice and Attorney-General [2021] QCAT 206

Kent v Wilson [2000] VSC 98

Owen v Stevens (unreported, 3 May 1991)

RWH v Director-General, Department of Justice and Attorney-General [2021] QCAT 407

TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489

TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142

Volkers Commission for Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Davis

REASONS FOR DECISION

Introduction

  1. [1]
    On 28 January 2021 the applicant applied to the respondent for a working with children clearance (otherwise known as a ‘blue card’) under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act).
  2. [2]
    On 29 June 2021 the respondent sent to the applicant a letter enclosing what is described as “… concerning information about your background or police history …”, and inviting her “… to tell us more about this information so that we can consider this before we make a final decision about your application …” The applicant responded to the invitation.
  3. [3]
    On 6 January 2022 the respondent issued to the applicant a written notice that states the application is refused (a negative notice).
  4. [4]
    On 4 February 2022 the applicant made application to the Tribunal to review the decision.

Non-publication order

  1. [5]
    The Tribunal, under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), may make an order prohibiting the publication of information that might enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. It is the practice of the Tribunal to make a non-publication order in proceedings such as that now before it to avoid endangering the physical or mental health or safety of a person.
  2. [6]
    The Tribunal may make a non-publication order on the application of a party to the proceeding or on its own initiative. Here, neither party applied for an order. Notwithstanding, I am satisfied it is appropriate to make the order to protect the identity of the applicant, the applicant’s family, and others.
  3. [7]
    To the extent appropriate and necessary, the names of persons have been de-identified in these reasons for decision.

Legislation

Object and principles of the WWC Act

  1. [8]
    The object of the WWC Act is found in section 5. It is:

... to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring:

  1. the development and implementation of risk management strategies; and
  2. the screening of persons employed in particular employment or carrying on particular businesses.
  1. [9]
    Section 6 contains the principles for administering the Act. It provides:

This Act is to be administered under the following principles:

  1. the welfare and best interests of a child are paramount;
  1. every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. (Emphasis added)

Application for a blue card

  1. [10]
    The respondent must issue a blue card to an applicant if the respondent is not aware of any relevant information about the person or is not required to issue a negative notice to the person under section 221(2) of the WWC Act.[1] However, the respondent must issue a negative notice to the applicant if the respondent is aware of relevant information about the person and 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 blue card to the person.[2]
  2. [11]
    The term relevant information is defined in section 221(3) of the Act. It is:
  1. information that the person has:
  1. a charge for an offence other than a disqualifying offence; or
  1. a charge for a disqualifying offence that has been dealt with other than by a conviction; or
  1. a conviction for an offence other than a serious offence;
  1. investigative information;
  1. domestic violence information;
  1. disciplinary information;
  1. adverse interstate WWC information;
  1. 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 blue card to the person.

Exceptional circumstances

  1. [12]
    The term ‘exceptional circumstances’ is not defined in the WWC Act. In Kent v Wilson[3], Hedigan J, at [22], repeated what he said in Owen v Stevens [4]:

The use of the phrase ‘exceptional circumstance’ is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.

Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm.

The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.

Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.

  1. [13]
    Wilson J, then President of the Tribunal, and Member Ford, in Commissioner for Children and Young People and Child Guardian v FGC[5], citing Kent v Wilson, said in relation to the term:

It is to be accepted that phrases like ‘exceptional case’ must be considered in 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 protect: children.[6]

Matters to which the respondent must have regard

  1. [14]
    If the respondent is aware an applicant for a blue card has been convicted of, or charged with, an offence, in deciding whether there is an exceptional case for the applicant, it must have regard to the matters set out in section 226(2) of the WWC Act. Those matters are:
  1. in relation to the commission, or alleged commission, of an offence by the person:
  1. whether it is a conviction or a charge; and
  1. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. when the offence was committed or is alleged to have been committed; and
  1. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. in the case of a conviction - the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
  1. any information about the person given to the chief executive under section 318 or 319;
  1. any report about the person’s mental health given to the chief executive under section 335;
  1. any information about the person given to the chief executive under section 337 or 338;
  1. information about the person given to the chief executive under section 138ZG of the Disability Services Act 2006 (Qld);
  1. 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. [15]
    If the respondent is aware of domestic violence information about an applicant for a blue card, it must have regard to the matters in section 228(2) of the WWC Act. Those matters include the circumstances of a domestic violence order or police protection order mentioned in the information, including the conditions imposed on the applicant by the order or notice.

Review

  1. [16]
    A decision of the respondent on whether there is an exceptional case for an applicant for a blue card is a chapter 8 reviewable decision about the applicant if, because of the decision, the respondent issued to the applicant a negative notice.[7] The applicant may apply, within the prescribed time (28 days after the applicant is given the decision[8]) and as otherwise provided under the QCAT Act to the Tribunal for a review of the decision.[9]
  2. [17]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[10] The Tribunal must hear and decide a review by way of a fresh hearing on the merits.[11]

Written material

Parties

  1. [18]
    The parties have filed voluminous written material. It includes:
    1. the reasons for the decision to issue a negative notice dated 6 January 2022, together with the documents said to be relevant to the decision;
    2. the applicant’s statement of evidence filed 7 June 2023;
    3. the applicant’s further statement of evidence dated 23 September 2023; and
    4. the respondent’s outline of submissions filed 3 October 2023.

Documents produced to the Tribunal in response to notices to produce

  1. [19]
    Documents produced to the Tribunal in response to notices to produce include:
    1. Brisbane Magistrates Court:

Documents relating to temporary domestic violence orders and domestic violence protection orders concerning the applicant made by the Court;

  1. Queensland Police Service:

Documents relating to charges of common assault laid against the applicant;

  1. Department of Children, Youth Justice and Multicultural Affairs (abolished in 2023):

Documents relating to notifications, child concern reports and other intakes, and other documents concerning the applicant.

Reasons for the decision to issue a negative notice

  1. [20]
    The reasons for the decision to issue a negative notice refer to the applicant’s criminal history provided by the Queensland Police Service and interstate services. The history is summarised below:

Date

Court

Charge

Finding

Penalty

02.04.2004

Ipswich Magistrates Court

Breach of order respondent present in court (on 24.02.2004)

No conviction recorded

Recognisance $200.00 and to be of good behaviour for 2 months

08.04.2004

Brisbane Magistrates Court

Breach of order respondent present in court – 2 charges (on 17.03.2004)

No conviction recorded

Recognisance $300 and to be of good behaviour for 6 months

30.07.2004

Brisbane Magistrates Court

Common assault - 2 charges (on 09/01/2004)

No evidence to offer

Withdrawn

21.11.2018

Brisbane Magistrates Court

Permitting use of place (on 17.10.2018)

No conviction recorded

Recognisance $200, good behaviour period 4 months, drug diversion

  1. [21]
    The reasons summarise the circumstances giving rise to each charge. The first charge arose out of an alleged breach of a domestic violence order on 24 February 2004. At the time, the applicant was 29 years of age.
  2. [22]
    The applicant admitted to police she was present in court when the order was made.
  3. [23]
    The second and third charges arose out of alleged breaches of a temporary domestic violence protection order on 17 March 2004. A strong smell of alcohol was detected by police and the applicant was unsteady on her feet. At the time, the applicant was on bail.
  4. [24]
    The fourth and fifth charges arose out of alleged assaults of the applicant’s child, then 8 years of age, on 9 January 2004. The applicant had been consuming alcohol and became angry with the child when he started to cry. The charges were withdrawn because the complainant formally withdrew the complaint.
  5. [25]
    The sixth charges alleged the applicant, on 17 October 2018, permitted her place of residence to be used to grow cannabis. At the time, the applicant was 44 years of age.
  6. [26]
    Police found a glass jar containing cannabis on a coffee table. Cannabis plants were growing in a bedroom cupboard with a fan and lighting. Smoking utensils were found throughout the premises.
  7. [27]
    The reasons then refer to information provided by the Department of Children, Youth Justice and Multicultural Affairs (Child Safety) summarised below:

Date

Concerns received

Alleged harm

Departmental response

Outcome

01/12/2003

Concerns were received alleging the applicant was unable to care for two children (3 months, 4 and 5 years) due to the level of intoxication (alcohol).

The applicant was taken to hospital and other care arrangements were made for the children.

The applicant advised she had been in two domestically violent relationships and was currently a victim of domestic abuse.

Neglect

Notification recorded.

Investigation and assessment completed.

The applicant was observed to handle the infant in a rough manner and did not support his head on multiple occasions.

The applicant smelt of alcohol during interviews and presented as intoxicated while caring for the 3-month-old child.

The child was diagnosed with chicken pox and low birth weight. The child was removed from the care of the applicant by the department.

The other children remained with relatives.

Substantiated.

Risk of physical harm caused by parent substance abuse.

Risk of physical harm caused by parent alcohol administration.

Child in need of protection

09/01/2004

Concerns were received alleging the applicant physically assaulted a child (4 months) to stop him from crying. This occurred in front of another child (7 years).

The applicant also punched a child (7 years) in the back on the same day.

The applicant was observed as intoxicated and was subsequently detained in custody

Physical harm

Notification recorded.

Investigation and assessment completed.

The applicant was subject to bail conditions directing her not to have unsupervised contact with the children.

The applicant denied the child protection concerns and denied she had an alcohol dependence problem. However, stated she was heavily intoxicated while caring for two of the children.

The applicant denied physical abuse of the children.

The applicant presented as under the influence of alcohol during the investigation.

The applicant has not sufficiently engaged with alcohol abuse intervention programs, so the concern remained unaddressed.

The children were placed with relatives.

Substantiated.

Risk of physical harm caused by domestic violence.

Risk of emotional harm caused by parent substance abuse.

Risk of physical harm caused by physical abuse.

Risk of physical harm caused by parent substance abuse.

Risk of emotional harm caused by domestic violence.

Risk of emotional harm caused by physical abuse.

Risk of emotional harm.

Child not in need of protection

  1. [28]
    The applicant provided submissions in response to an invitation extended to her by the respondent in respect of an earlier application for a blue card, subsequently withdrawn, on 17 and 18 October 2018, 29 August 2018, and 19 October 2018. She concedes the information provided to the respondent is correct, “… to the best of my knowledge at that period of my life …” She asserts:
    1. at the time of the offences in 2004, she was drinking;
    2. she is a recovering alcoholic;
    3. she has been sober for ten years; and
    4. she has made significant career and health changes.
  2. [29]
    The applicant, on 21 July 2021, 17 and 24 August 2021, 29 September 2021, and 23 December 2021, provided written submissions to the respondent. On the current application for a blue card, oral submissions were provided by her to the respondent on 25 June 2021, 26 July 2021, 20 and 30 September 2021, 17 November 2021, and 22 December 2021.
  3. [30]
    Additionally, the applicant provided to the respondent several references, summarised in the decision, and reproduce below:

Referee details

Relevant comments

Name:

Ms. KH

[The applicant] has been a volunteer with Leeds Advocacy since Joining us in February 2012.

She has since completed her training in Advocacy Skills, Learning Disabilities and Person Planning Review. She is now matched as a volunteer Citizen Advocate with a man who has learning disabilities, and also volunteers as a Meeting Supporter for group activities.

[The applicant] is a valued member of the Volunteer Team and Is always reliable and punctual in her work.

Position:

Fellow volunteer

Date:

18/07/2012

Years known

9 years

Knowledge of offences:

No knowledge stated

Name:

Ms. CD

Whilst I understand that [the applicant] has had past involvement with Child Safety and Police in regards to her family, in the last 12 months I have worked with her and her son, I have seen [the applicant]  consistently commit to teaming and growing as a parent. [The applicant] always seeks support and assistance if she is having difficulties and welcomes that support into her family, particularly in regards the welfare of her son.

I do not believe [the applicant] would be any risk at all in working with children or young people. Additionally, I think her life experience, personal growth and previous work experience would be a great asset in the community sector and I have no hesitation in supporting [the applicant’s] application for a Blue Card.

Position:

Case Manager, Senior Community Services Officer

Date:

29/07/2021

Years known:

12 months

Knowledge of offences:

Some knowledge indicated

Name:

Ms. CEB

How long have you known [the applicant]? In what capacity? 10 years.

How well does [the applicant] relate to other people e.g. family, friends, colleagues, etc.? Very well.

Are there any health reasons you know of which would affect [the applicant’s] suitability to do the work of Volunteer? Not that I know.

Has [the applicant] ever been the subject of any legal proceedings to your knowledge? (Please give details) I believe so regarding her children, but I do not know the details.

Please give your Impression of [the applicant’s] suitability for this type of work as outlined in the enclosed information. (Please indicate any situation that you feel might be too demanding). In my opinion [the applicant] is well suited to this work and I do not consider she would be fazed by any particular situation.

How adaptable do you think [the applicant] is? Very adaptable.

Please can you say how long [the applicant] is likely to stay in Leeds? I do not think she has any Intention of leaving Leeds.

Do you [the applicant] is suitable to work with children, young people or other vulnerable people? If not, why not? (We will want to talk with you about this in confidence.) Yes, absolutely.

Do you have any other comments or observations about [the applicant] you think we should know about? (Please add more sheets if you wish). No.

Position:

Unknown

Date:

09106/2012

Years known:

10 years

Knowledge of offences:

No knowledge stated

Name:

Reverend AH, Stainbeck Church

How long have you known [the applicant]? In what capacity? I have known [the applicant] for about 6 years. She is a member/attends another local church but volunteers in Stainbeck and comes to our community cafe.

How well does [the applicant] relate to other people e.g. family, friends, colleagues, etc.? [The applicant] is friendly, approachable and listens and is interested in other people.

Are there any health reasons you know of which would affect [the applicant’s] suitably to do the work of Volunteer? I do not know details of [the applicant’s] present health but she is regularly attending our Youth Club as a volunteer. Attendance reliable.

Has [the applicant] ever been the subject of any legal proceedings to your knowledge? (Please give details) I understand there are legal proceedings regarding custody of her son - but otherwise not to my knowledge.

Please give your impression of [the applicant’s] suitability for this type of work as outlined in the enclosed Information. (Please Indicate any situation that you feel might be too demanding). I do not know [the applicant] well enough to make a judgement - but I believe she would understand the role and could be successful in it.

How adaptable do you think [the applicant] is? If life is on an even keel for her, [the applicant] is adaptable.

Please can you say how long [the applicant] is likely to stay in Leeds? No - but her family is here and I believe it is her intention to stay.

Do you [the applicant] is suitable to work with children, young people, or other vulnerable people? If not, why not? (We want to talk with you about this in confidence.) Yes.

Position:

Reverend

Date:

13/05/2012

Years known:

Approx. 6 years

Knowledge of offences:

No knowledge stated

  1. [31]
    The decision then summarises other material provided by the applicant to the respondent.[12]
  2. [32]
    In deciding to issue a negative notice, the respondent makes specific reference to the Queensland Police Service and Department information, submissions and references, and the transferability of a blue card.

Hearing

  1. [33]
    The application for review was heard by the Tribunal on 23 October 2023.
  2. [34]
    The applicant was self-represented. Ms Davis, a solicitor employed by the respondent, appeared on behalf of the respondent.

Applicant’s oral evidence

  1. [35]
    At the outset of the hearing, the applicant tendered a bundle of documents.[13] The documents included the applicant’s statement of evidence, her further statement of evidence, medical records, and references.
  2. [36]
    Ms Davis cross examined the applicant. She outlined the circumstances surrounding her being charged in the United Kingdom with driving a motor vehicle with an excess of alcohol and battery. At the time of the former offence, the applicant conceded, she was pregnant.
  3. [37]
    The applicant was unable to recall suggesting she and her former husband were using marijuana during a court hearing on 21 November 2018. Occasionally, she conceded, she has shared a drug with him in the past and since it has become legal to do so.
  4. [38]
    The applicant was unable to recall admitting using cannabis during an interview conducted by the Child Safety on 12 April 2019.
  5. [39]
    She conceded she consumed alcohol while pregnant with two of her children. She stopped, she said, following a cardiac arrest on 12 April 2010.
  6. [40]
    The applicant accepted she attended her children’s childcare centre while extremely intoxicated on 1 December 2003 and allowed one of her children, then aged four months, to become sunburnt. Also, she accepted she has committed domestic violence and conceded her excessive use of alcohol whilst caring for her children placed the children at significant risk of physical harm and neglect.
  7. [41]
    The applicant was unable to recall an incident on 18 August 2018 when it is said she called her thirteen-year-old daughter a ‘slut’ and ‘slag’, and slapped her twice on the leg, or an incident on 20 April 2020 when it is said she hit her son on the back of the head.

Applicant’s written evidence

Applicant’s statement of evidence

  1. [42]
    The applicant’s statement of evidence, filed 7 June 2023, appears to have been prepared by a third party. It contains many gaps and instructions for completion and is not dated or signed.
  2. [43]
    The applicant concedes she is a recovering alcoholic. She blames her husband for not discouraging her drinking and introducing her to marijuana. She states she has worked hard to remain sober since 2010.
  3. [44]
    She asserts her alcoholism at the time of the offending in 2004 negatively impacted her decision-making and her children.
  4. [45]
    The applicant addresses the charges of common assault on 9 January 2004 stating she has little recall of the offending and describes them as a series of unfortunate events.
  5. [46]
    All of her children, the applicant states, have suffered mental health issues. [Her husband, S] returning to live with her in 2005 and continuing to abuse her “… triggered my return to drinking …”
  6. [47]
    The applicant acknowledges permitting her place of residence to be used to grow cannabis was not a safe environment for her son. She now has a significant support and social network, the applicant states.
  7. [48]
    The applicant filed the medical reports and references referred to later in these reasons for decision. The persons concerned, however, were not called to give evidence on her behalf. In cross-examination, the applicant asserted she asked her psychologist to provide a statement of evidence. The psychologist agreed to provide a letter but declined to attend the hearing to give evidence.
  8. [49]
    Since November 2021, the applicant states, she has been attending counselling sessions with Ms F, a clinical psychologist with Soldier On Brisbane.

Applicant’s further statement of evidence

  1. [50]
    The applicant filed a further statement of evidence. It is dated 23 September 2023.
  2. [51]
    She cannot recall participating in the drug testing on 12 April 2019 referred to in a record of interview produced by Child Safety.[14] The record of the interview reads:

Discussed drug screen results showing marijuana use. Both [the applicant] and [a third party] denied current use stating that they used marijuana 3 weeks ago. CSO advised that the drug screen has appeared with 4 stars, indicating recent use or frequent use, however this was denied by both parents.

  1. [52]
    Later, the record of interview continues:

[The applicant] and [redacted] stated that their last use of cannabis was a couple of months ago in Caloundra. They stated that they would have half an ounce per week, mixed in with a tiny bit of tobacco and would smoke it by a joint. They stated that it was used to sleep at night. [The applicant] stated that their last use in Caloundra was a joint or two with over 25% THC. [The applicant] stated that they use it medicinally.

[The applicant] stated that they would never use in front of [redacted] and wait until he was in bed would then smoke out the back.

  1. [53]
    Likewise, the applicant is unable to recall participating in a drug screen on 21 March 2019 referred to in a record of interview produced by Child Safety.[15] The entry reads:

[The applicant’s] drug screens showed positive for cannabis use, indicating recent or regular use, which was denied by both [redacted] and [the applicant], who each stated that they had last smoked cannabis three weeks ago, which could still be plausible reasons for the positive drug screens.

  1. [54]
    The applicant states she was introduced to cannabis by her former partner in April 2019 and occasionally smoked cannabis with him. She denies exposing her child to cannabis.
  2. [55]
    She currently takes medicinal cannabis in the form of an oil and/or flour. She does so to treat her chronic pain because of the injuries suffered by her in a motor vehicle accident on 17 November 2022. The lawful use of medicinal cannabis, it is to be observed, postdates the illegal use of the drug.
  3. [56]
    The applicant, as part of the exhibit A1, tendered in evidence medical records and references.

Medical records

Dr JO:

  1. [57]
    Dr O, on 17 April 2023, prepared a National Disability Insurance Agency Access Request – Supporting Evidence Form for the applicant. She records the applicant’s primary impediment as “… complex PTSD …”. It is said to be lifelong.
  2. [58]
    Other impediments having a significant impact are listed as “anxiety/depression/eating disorder”. Chronic back pain is also listed as an impairment.
  3. [59]
    The report records the applicant needs assistance, guidance, and support, including with relationships, due to trauma.

Ms PF:

  1. [60]
    Ms F is a clinical psychologist with Soldier On Brisbane. Her letter is dated 29 May 2023.
  2. [61]
    The applicant, Ms F states, sought assistance from Soldier On to address the effects of trauma. In her opinion, the applicant possesses the potential to employ her personal experiences and academic achievements in assisting fellow community members.
  3. [62]
    Nothing is said about her suitability for a blue card.

Medical records:

  1. [63]
    The medical records are from Meanwood Group Practice in the United Kingdom. They are from 1993 until 2018.
  2. [64]
    The most recent records include records of treatment for stress, with sertraline, an antidepressant medication, and co-codamol, for the relief of severe pain.

Patient Health Summary:

  1. [65]
    The Patient Health Summary, dated 11 October 2023, is provided by Brighton Medical Centre in Brighton, Queensland. It lists the applicant’s current medications as:
    1. Mirtazapine 15mg (to treat major depressive disorder)
    2. Panadeine Forte 500mg (to treat severe pain)
    3. Propranolol 40mg (to treat heart problems, anxiety and migraine)
    4. Sertraline 100mg (an antidepressant medication)
    5. Valium 5mg (to treat anxiety).
  2. [66]
    Her active history is listed as:
    1. dissociative disorder
    2. anxiety
    3. back pain
    4. PTSD
    5. depression

Dr LK:

  1. [67]
    Dr K is with Cann I Help, a network of clinics offering patients access to natural, alternative medicinal treatments. His letter, addressed to Dr SN, is dated 14 April 2022.
  2. [68]
    The letter records the applicant has sought treatment with medicinal cannabis products for the following:
    1. chronic pain
    2. anxiety
    3. depression
    4. sleep issues
    5. issues around food.
  3. [69]
    It was decided to proceed with a therapeutic trial of medicinal cannabis products.
  4. [70]
    The applicant, in cross-examination by Ms Davis, explained she sought treatment with medicinal cannabis following a fall at work in December 2017.[16] She conceded it is illegal to drive a motor vehicle while being treated with medicinal cannabis[17], but asserted it would not impact on her ability to care for children[18].

References

Ms AM:

  1. [71]
    Ms M is a Recovery Support Worker with Richmond Fellowship Queensland, an organisation supporting people in recovery. Her open letter is dated 10 May 2023.
  2. [72]
    The letter states the applicant has achieved work towards a new life. Ms M states she has read prior documentation, without identifying the documentation, and expresses the view the applicant has recognised the effects of past situations on her family and identified changes needed to move forward.

Ms CD:

  1. [73]
    Ms D is with The Legacy Club of Brisbane Ltd. Her open letter is dated 14 September 2022.
  2. [74]
    She describes the applicant as a strong and resilient individual who has done extremely well to stay sober in challenging times.
  3. [75]
    The letter says nothing about the author being provided with relevant documents or the applicant’s suitability for a blue card.

Brisbane Domestic Violence Service, Micah Projects:

  1. [76]
    The author of the open letter from Brisbane Domestic Violence Service, Micah Projects, a non-profit organisation proving services to people who are experiencing or are at risk of domestic and family violence, is not disclosed. It is dated 9 August 2021.
  2. [77]
    The letter does no more than confirm the organisation is providing support to the applicant and her son. It is of no assistance in deciding the referral before the Tribunal.

Respondent’s outline of submissions

  1. [78]
    On 3 October 2023 the respondent filed an outline of submissions. In part A, the respondent summarises the background to the review, in part B, the material filed by the parties, and in part C, the respondent provides submissions on the relevant law.
  2. [79]
    Then, in part D, the respondent addresses whether the case is exceptional such that it would not be in the best interests of children to issue a blue card to the applicant. The respondent submits the Tribunal:
    1. must have regard to the paramount principal for administering the WWC Act, found in section 6(a);
    2. consider the matters in section 226(2) of the WWC Act;
    3. consider the matters in section 228(2) of the Act;
    4. consider other matters relevant to the decision, citing Commissioner for Children and Young People and Child Guardian v Maher & Anor[19] and Commissioner for Children and Young People and Child Guardian v Lister (No. 2)[20];
    5. consider a human right relevant to the decision, referring to section 58(1)(b) of the Human Rights Act 2019 (Qld) (HR Act).
  3. [80]
    The submissions then address each of those matters. In relation to a charge that did not result in a conviction, the respondent refers to the decision of Tribunal in Volkers v Commission for Children and Young People and Child Guardian[21]. There, at [58], after referring to the decision in Chief Executive Officer, Department for Child Protection v Grinrod (No. 2)[22], the Tribunal said:

It is not this Tribunal’s function to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non conviction charges in question.  The relevant function involves an analysis and evaluation of risk.  It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of future potential harm ...

  1. [81]
    Reference is also made to the decision of the Tribunal in TNC v Chief Executive, Public Safety Business Agency[23]. There, the Tribunal, at [83], said the following in relation to a charge:

A charge is not the same as an allegation. Before a charge is brought consideration is given to the evidence available supporting the charge. This gives it more weight than an unscrutinised allegation. The legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.

  1. [82]
    The respondent, after summarising the applicant’s alleged offending and offending, submits it “… reflects adversely on an evaluation of her eligibility to work with children and young people …” The reasons for the submission are then set out in detail. They included:
    1. the applicant’s drug-related conviction raises questions about her ability to provide children with a safe and protective environment;
    2. the applicant’s repeated breaches of domestic violence orders and conduct raises questions about the extent to which the applicant has exposed children in her care to domestic violence, citing the Appeal Tribunal in Vaeau v Director-General, Department of Justice and Attorney-General[24]. There, at [52], the Tribunal said:

Domestic violence is undoubtedly a scourge on society. Recent years have seen raised awareness of the prevalence and diverse forms of domestic violence resulting in vehement condemnation of acts of domestic violence of all types by the community at large, as well as an attitude of ‘zero tolerance’. It is also now accepted and understood that a child exposed to domestic violence can experience serious physical, psychological and emotional harm.

  1. the applicant’s offending and alleged offending raises questions about whether she possesses the skills and abilities necessary to work with children and young people;
  2. the applicant’s offending raises questions about her respect for the law, lawful behaviour, and compliance with court orders;
  3. the applicant’s alleged offending on 9 January 2004 and offending on 24 February 2004 and 17 March 2004 suggest the applicant has been unable (or unwilling) to deal with past situations of stress or conflict in a calm, rational, and constructive manner;
  4. the applicant’s offending and alleged offending raises questions about her ability to present as a positive role model, citing RWH v Director-General, Department of Justice and Attorney-General[25]. There, at [34], the Tribunal said:

Children are heavily influenced by the adults in their lives for whom they should have respect and trust. Adults are expected to be able to regulate their behaviour and provide care and a protective environment for children. It is generally accepted that it is confusing and harmful for children to be given conflicting messages about serious matters such as drug use and breaking the law. An adult’s tacit approval of drug use by their example may have the effect of normalising this conduct in the child’s impressionable mind.

  1. the applicant’s offending and alleged offending reflects adversely on an evaluation of the potential risks she poses to children and young people placed in her care in the future;
  2. the applicant’s behaviour in the past suggests a higher likelihood she will engage in harmful behaviour of a similar nature in the future.
  1. [83]
    The submissions then refer to the penalty imposed by the court in the case of a conviction and domestic violence information.
  2. [84]
    The material produced by Child Safety, it is submitted by the respondent, reflects allegations of:
    1. neglect;
    2. domestic violence;
    3. the applicant’s mental health;
    4. the applicant’s use/misuse of substances;
    5. the applicant’s ability to act protectively of children in her care;
    6. the risks posed by the applicant; and
    7. the need to remove the applicant’s children from her care.
  3. [85]
    The information, it is further submitted by the respondent, “… reflects adversely on the applicant’s eligibility to hold a blue card …”
  4. [86]
    The respondent comments on the applicant’s character witnesses drawing attention to their failure to attend the hearing to give evidence and citing CA v Director-General, Department of Justice and Attorney General[26]. There, at [151], the Tribunal said:

In assessing the evidence, the Tribunal gives no weight to the written statements of persons who were not made available to appear and give evidence before the Tribunal because, firstly, it is not apparent that they had correct and full knowledge of the applicant’s offending and convictions and, secondly, there was no opportunity to test their evidence by cross-examination.

  1. [87]
    The respondent acknowledges the applicant’s submissions on the circumstances giving rise to the offending and conduct but submits the Tribunal should exercise caution in accepting the submissions.
  2. [88]
    Finally, the respondent makes mention of the transferability of a blue card and human rights.
  3. [89]
    In conclusion, the respondent submits it would not be in that the best interests of children and young people for the applicant to be issued with a blue card.

Consideration

Introduction

  1. [90]
    The applicant has been convicted of, or charged with, several offences in Australia and the United Kingdom with the consequence regard must be had to the matters set out in section 226(2) of the WWC Act. Particulars of the Australian charges, and the findings, are set out in paragraphs [20] - [26] of these reasons for decision.
  2. [91]
    Particulars of the United Kingdom charges, and the findings, are set out in the table below:

Date

Court

Charge

Finding

Penalty

03.01.2006

South Derbyshire Magistrates Court

Driving a motor vehicle with excess alcohol

Guilty

Community order 12 months, supervision requirement for 30 months, unpaid work for 200 hours, disqualified from driving – obligatory 3 years reduced to 27 months on completion of rehabilitation course by 03.02.2008, driving licence interim disqualification imposed 29.11.2005, costs £35.00

03.09.2007

Leeds District Magistrates Court

Battery

Guilty

Conditional discharge 2 years, compensation £150.00, costs £60.00

Conviction or charge (section 226(2)(a)(i) of the WWC Act)

  1. [92]
    None of the Australian charges resulted in a conviction. As was observed by Member Rogers in TNC v Chief Executive Officer, Public Safety Business Agency[27]:

A charge is not the same as an allegation. Before a charge is brought consideration is given to the evidence available supporting the charge. This gives it more weight than an unscrutinised allegation. The legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.

  1. [93]
    The learned Member then commented on the perceived unfairness to the applicant, and continued:

[85] Parliament considered this tension and stated in the explanatory notes to the Bill introducing the Act at page 10:

The infringements [on the rights of the individual] are considered necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their well being

[86] I am therefore required to give some weight to the charges. They do not constitute an exceptional circumstance by themselves, if they did that would have the effect of elevating their importance to the level of convictions, and Parliament drew a distinction, but they must be considered as part of the circumstances.

  1. [94]
    The United Kingdom charges resulted in convictions.

Whether the offences are serious or disqualifying offences (section 226(2)(a)(ii) of the WWC Act)

  1. [95]
    Serious offence is defined in section 15 of the WWC Act. It includes an offence against a provision of an Act mentioned in schedule two or three, column 1, subject to any qualifications relating to the provision mentioned opposite in column 3.
  2. [96]
    Disqualifying offence is defined in section 16 of the Act. It includes an offence against a provision of an Act mentioned in schedule 4 or 5, column 1, subject to any qualifications relating to the provision mentioned opposite in column 3.
  3. [97]
    The Australian and United Kingdom charges are neither serious nor disqualifying offences. But that is not to say they should not be considered. I have done so.

When the offences were committed or alleged to have been committed (section 226(2)(a)(iii) of the WWC Act)

  1. [98]
    The dates on which the Australian offences were committed or alleged to have been committed are set out in the table in paragraph [20]. Five of the Australian charges are old, having arisen out of incidents that occurred about 20 years ago. Notwithstanding their age, two of the charges are of particular concern, the charges the applicant assaulted her child, then eight years of age.
  2. [99]
    The more recent charge, that of permitting her place of residence to be used to grow cannabis, is also of the concern. It occurred less than six years ago when the applicant was 44 years of age.
  3. [100]
    The dates on which the United Kingdom offences were committed are set out in the table in paragraph [91]. The charges were heard on 3 January 2006 (driving a motor vehicle with excess alcohol) and 3 September 2007 (battery).

Nature of offences (section 226(2)(a)(iv) of the WWC Act)

  1. [101]
    The circumstances surrounding the Australian charges, distilled from the documents filed in the Tribunal, are set out in paragraphs [51] – [58] of the respondent’s outline of submissions. They are briefly summarised in paragraphs [20] - [26] of these reasons for decision.
  2. [102]
    The circumstances, as described, were not disputed by the applicant.

Penalties imposed (section 226(2)(a)(v) of the WWC Act)

  1. [103]
    A range of penalties were imposed by the courts in Australia and the United Kingdom. The penalties for the Australian offences are found in column 5 of the table in paragraph [20].
  2. [104]
    The penalties for the United Kingdom offences are in column 5 of the table in paragraph [91].

Comments and findings on convictions and charges

  1. [105]
    Five of the Australian charges are old, having arisen out of incidents that occurred about 20 years ago. The more recent charge, that of permitting her place of residence to be used to grow cannabis, arose out of an incident that occurred less than six years ago when the applicant was 44 years of age.
  2. [106]
    During sentencing remarks for the more recent charge, the following exchange took place between the presiding magistrate and the applicant:

Her Honour: But he will have to learn to access other things besides marijuana.

Applicant: We - which we ...

Her Honour: Okay?

Applicant: ... together are doing.

  1. [107]
    The applicant was unable to recall the exchange or whether she was using cannabis at the time. In further cross-examination by Ms Davis, the applicant admitted using illicit cannabis “sporadically” and sharing a drug with [S].[28] She did not approve of [S] growing cannabis in a cupboard but could not stop him.[29] She conceded that, consequently, her son had “… suffered significantly ...”[30]
  2. [108]
    The United Kingdom charges arose out of incidents that occurred in about 2005 or 2006 and 2007. Notwithstanding their age, two of the charges are of particular concern, the charges the applicant assaulted her child, then eight years of age.
  3. [109]
    The applicant, in cross examination by Ms Davis, was asked to explain the United Kingdom charge of battery. She responded:

[S] made my mum drive to where I was. What I would describe as a safe house. I was in the – I was at a friend’s house, and I didn’t want [S] to know where that friend lived, but my mum brought him. And when I went out to the car, find out what going on, I slapped her for revealing my safe place to [S]. [S] called the police and reported it, not my mum. My mum paid the 100 and – or $200 fine that I was charged there and the – that’s – it’s – was something between me and my mum at the time. I was drinking at the time and my mum and I have moved on from that. And it – yeah, I was embarrassed that I reacted badly and I was drinking at that time.[31]

  1. [110]
    She was also asked about the United Kingdom charge of driving a motor vehicle with the excess alcohol. The applicant responded:

Oh, that was stupid. [S] had gone back to Australia, after coming to England to find me because he’d abandoned his eight year old in Cairns. So he had to fly back to Australia, and then he didn’t have the money to return to England. So he convinced somebody to buy me an aeroplane ticket to come to Australia, and I stupidly got in the car to drive to the station and got caught drink driving [indistinct] what I was thinking.[32]

  1. [111]
    The respondent submits the applicant’s offending and alleged offending reflects adversely on an evaluation of her eligibility to work with children and young people. I agree.
  2. [112]
    The Australian charges of allegedly breaching a domestic violence order and a temporary domestic violence protection order evidence a lack of respect for the law and orders of a court. Such lack of respect is incompatible with the responsibilities of an adult working with children.[33]
  3. [113]
    The charges of assault of the applicant’s child, then eight years of age, are of particular concern. The applicant attributes her conduct to her circumstances at the time. The explanation is rejected. Circumstances, no matter how desperate, do not justify an adult assaulting an eight-year-old child.
  4. [114]
    The conduct evidences an inability to cope with an everyday incident involving children and a failure to protect a child. It is anathema to the principles for administering the WWC Act, in particular every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. While the alleged assaults were committed about twenty years, given the applicant’s medical condition and medication, the Tribunal is not satisfied the conduct might not be repeated in similar circumstances.
  5. [115]
    The more recent charge of allegedly permitting her place of residence to be used to grow cannabis with children present is, once again, of concern. The shifting of blame onto [S] does not rest easy with the applicant’s responsibilities towards her child.
  6. [116]
    The United Kingdom charge of driving a motor vehicle with excess alcohol, once again, evidences a lack of respect for the law. The conduct is exacerbated by her being pregnant at the time and her failure to act appropriately towards her unborn child.
  7. [117]
    The charge of battery, in the circumstances explained in cross-examination, suggests the applicant is unable to control her temper. She attributes her conduct to her consumption of alcohol at the time. Whist it is accepted the applicant has received counselling and medical treatment in the meantime, the Tribunal is not satisfied, on the evidence available to it, the conduct might not be repeated.

Information about the applicant under sections 318 – 338 of the WWC Act (sections 226(2)(b) – (f) of the WWC Act)

  1. [118]
    The Tribunal has not been given any information or report about the applicant under sections 318 – 338 of the WWC Act.

Domestic violence information (section 228(2)(a) of the WWC Act)

  1. [119]
    Domestic violence information, about a person, means information about the history of domestic violence orders made, or police protection notices issued, against the person under the Domestic and Family Violence Protection Act 2012 (Qld).[34]
  2. [120]
    The definition of Domestic violence order in schedule 7 takes you to section 23(2) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act). There the term is defined as:
    1. a protection order; or
    2. a temporary protection order.
  3. [121]
    A temporary protection order is an order made in the period before a court decides whether to make a protection order for the benefit of an aggrieved.[35]
  4. [122]
    A temporary protection order was made against the applicant on 13 January 2004, 3 February 2004, and 1 April 2004. The aggrieved named in each of the orders is the applicant’s former husband.
  5. [123]
    On 25 March 2020 a protection order was made against the applicant’s former husband, naming the applicant as the aggrieved and the applicant’s son as a person protected by the order. The order was varied on 4 January 2021.
  6. [124]
    It is well established domestic violence can have a profound and lasting effect on children, both psychologically and emotionally. The ways in which it may impact on children include emotional distress, behavioural problems, academic and social difficulties, and physical health problems.
  7. [125]
    In Vaeau v Director-General, Department of Justice and Attorney-General[36], Senior Member Howard and Member Fitzpatrick (as she then was) said the following about the effect of domestic violence on children:

Domestic violence is undoubtedly a scourge on society. Recent years have seen raised awareness of the prevalence and diverse forms of domestic violence resulting in vehement condemnation of acts of domestic violence of all types by the community at large, as well as an attitude of ‘zero tolerance’. It is also now accepted and understood that a child exposed to domestic violence can experience serious physical, psychological and emotional harm ...[37]

  1. [126]
    It is accepted the applicant has sought and received counselling, support, and advice. However, in the absence of medical or other evidence on the nature and outcome of the counselling, support, and advice, the Tribunal cannot be confident the conduct will not be repeated exposing a child in the applicant’s care to harm.

Other information (section 228(2)(g) of the WWC Act)

Child Safety information

  1. [127]
    The Child Safety information includes the information summarised in paragraph [27] of these reasons for decision. Otherwise, the information, as the respondent asserts and I accept, contains reports of allegations of neglect, domestic violence, the applicant’s mental health, use of substances and ability to act protectively towards children in her care, the risks posed by the applicant and the need to remove children in her care.
  2. [128]
    The most recent information was received on 1 December 2022. The concerns include allegations of neglect and longstanding housing instability and a suggestion the applicant may be using alcohol and drugs.
  3. [129]
    The child protection information casts significant doubt over the applicant’s ability to care for a child in a way that protects the child from harm and promotes the child’s wellbeing.

Medical information

  1. [130]
    Dr O records the applicant’s primary impediment as “... complex PTSD ...”. It is said to be lifelong.
  2. [131]
    Other impediments having a significant impact are listed as “anxiety/depression/eating disorder”. Chronic back pain is also listed as an impairment.
  3. [132]
    The report records the applicant needs assistance, guidance, and support, including with relationships, due to trauma.
  4. [133]
    The Patient Health Summary provided by Brighton Medical Centre lists the applicant’s active history as:
    1. dissociative disorder
    2. anxiety
    3. back pain
    4. PTSD
    5. depression.
  5. [134]
    Dr O records the applicant’s primary impediment as complex PTSD. Other impediments having a significant impact on the applicant include anxiety and depression.
  6. [135]
    The medical evidence does not disclose in what way, if at all, the applicant’s medical conditions might affect her ability to promote and protect the rights, interests and wellbeing of children and young people in her care. The issue, in the backdrop of the history of offending, child protection information and treatment with medicinal cannabis, loomed large from the outset of the application for a blue card. Yet, there is next to no independent evidence addressing the issue.

Medicinal cannabis

  1. [136]
    Dr K records the applicant has sought treatment with medicinal cannabis products for the following:
    1. chronic pain
    2. anxiety
    3. depression
    4. sleep issues
    5. issues around food.
  2. [137]
    The applicant admits she has used cannabis illegally in the past. She was introduced to the drug in 2003. She is now being treated with medicinal cannabis. The products initially prescribed were:
    1. Medcan FX05
    2. Kind medical death bubba.
  3. [138]
    Prescriptions filed in the Tribunal by the applicant and dated 3 October 2023 are for the following products:
    1. Medcan FZ01 (Frozen Lemons) 22% THC 10g (free text) Delta-9-Tetrahydrocannabinol 22%
    2. Medcan GLU01 (Sherbert Glue) (free text) Cannabidiol 0.1% Delta-9-Tetrahydrocannabinol 25%
    3. Medcan SC01 (Strawberry Cake) 22% THC 10g (free text) Delta-9-Tetrahydrocannabinol 22% Cannabidiol 1% Delta-9-Tetrahydrocannabinol 22%
  4. [139]
    The authors of a scholarly article, entitled Medicinal cannabis in the treatment of chronic pain, published in the Australian Journal of General Practice in October 2021, suggest the evidence base for the efficacy of medicinal cannabis in treating chronic pain is complex and contentious. “Numerous systematic reviews and meta-analyses have been conducted reaching both positive and negative conclusions.”
  5. [140]
    The known side-effects from medicinal cannabis (both tetrahydrocannabinol (THC) and cannabidiol (CBD)), when used to treat chronic pain, include:
    1. fatigue and sedation
    2. vertigo
    3. nausea and vomiting
    4. fever
    5. decreased or increased appetite
    6. dry mouth
    7. diarrhoea.
  6. [141]
    THC (and products high in THC) have been associated with convulsions, feeling high or feeling dissatisfied, depression, confusion, hallucinations, paranoid delusions, psychosis, and cognitive distortion (having thoughts that are not true).[38]
  7. [142]
    The respondent, in her submissions, mentions three decided cases in which the Tribunal considered the impact of medicinal cannabis on a person’s ability to care for children:
    1. ED v Department of Children, Youth Justice and Multicultural Affairs[39];
    2. RWH v Director-General, Department of Justice and Attorney-General[40];
    3. TWE v Director-General, Department of Justice and Attorney-General[41].
  8. [143]
    In the first decision mentioned, the Tribunal, at [100], said:

In our view, ED’s use of THC is likely to affect ED’s ability to care for children in her care, particularly young children with special needs or difficult behaviour. ED was clearly reliant on THC to help alleviate the symptoms of her medical conditions and the side effects of using THC include tiredness and impaired cognition from the sedative effect. We note ED’s evidence that she would only use it when the children were on contact and then not drive over the weekend. However, the children, even if not being driven places, would still need her to be alert and mentally and emotionally aware. We find it unlikely that this would have been the case if ED had taken THC on a Friday evening. We also consider it unlikely, given ED’s dependence, that she would have been able to confine its use to the weekend. Alternatively, assuming she had, it would explain, in part, her insistence on being given respite.

  1. [144]
    The Tribunal panel in ED v Department of Children, Youth Justice and Multicultural Affairs had available to it extensive oral evidence, including that of a general practitioner, Dr R. He said medical cannabis is not an endorsed treatment for a person with a history of cannabis use.[42]
  2. [145]
    Whilst the applicant may think a person using medicinal cannabis is able to care for children in her care, I am without any or any satisfactory evidence, medical or otherwise, she might do so while being treated with medicinal cannabis. She suffers from complex PTSD and other medical conditions. I simply do not know whether the applicant’s use of medicinal cannabis, either alone or in combination with her history, complex PTSD, or other medical conditions, would be a risk to children in her care.

Inability to work and loss of benefit to children

  1. [146]
    The respondent submits the applicant being unable to continue working as a support worker for CentacareCQ (a community service agency of the Catholic Church) and any benefit to children from having access to the applicant’s skills are irrelevant in deciding whether it is in the best interests of children to issue a blue card to the applicant. I agree.
  2. [147]
    As McPherson JA observed in Commissioner for Children and Young People and Guardian v Maher[43] in relation to predecessor legislation:

Expressions in that form have long been a feature of the law governing the affairs of children. Referring to that principle in McKee v McKee [1951] AC 352, 356, Viscount Simmonds said it was the paramount consideration “to which all others yield.”

  1. [148]
    The principal was repeated by McLure JA in Chief Executive Officer, Department for Child Protection v Scott [No 2][44]:

The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who are involved in child-related work and have been convicted of, or charged with (including charged with and acquitted of), specified criminal offences. The evident legislative purpose is to protect children who may suffer harm as a result of contact with people engaged in child-related work who pose or may pose a potential threat. The Act is only intended to benefit children insofar as it is intended to protect them. It is not otherwise concerned with actively advancing the interests of children. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account. (Emphasis added)

References

  1. [149]
    The applicant, as part of the exhibit A1, tendered in evidence several references.  They are summarised in paragraphs [71] - [77] of these reasons for decision.
  2. [150]
    The persons concerned were not called to give evidence on behalf of the applicant.  The extend to which each of the persons were provided with background information relevant to deciding whether there is an exceptional case for the applicant is not disclosed.
  3. [151]
    I have accorded the references no weight.

Transferability of blue card

  1. [152]
    The respondent draws attention to what is described as the “transferability” of a blue card. Once issued, it is said, the applicant can work in any child-related employment or conduct any child-related business, supervised or unsupervised, regulated by the Act, not just for the purpose for which the applicant has sought the card. If issued with a blue card, the applicant could work with children of any age, gender, or vulnerability.
  2. [153]
    I accept the submission. However, in my opinion the purpose for which an applicant has applied for a blue card is largely irrelevant. The scheme of the legislation focusses on the welfare and best interests of children no matter their age, gender, or vulnerability. The focus does not change by reason of how the card is to be used.

Human rights

  1. [154]
    The respondent concedes the application calls into consideration several human rights but submits a decision of the Tribunal the applicant’s case is an exceptional case will be compatible with those rights. I agree.
  2. [155]
    In exercising its review jurisdiction, the Tribunal is acting as a public entity for the purposes of the HR Act and therefore the Act applies to the Tribunal.
  3. [156]
    The Tribunal is required to interpret statutory provisions, to the extent possible consistent with their purpose, in a way compatible with human rights or, if not possible, to interpret them in a way most compatible with human rights.[45] It is unlawful for a public entity to act or make decisions in a way not compatible with human rights, or in deciding, to fail to consider a human right.[46] The Tribunal must identify the human rights that may be affected by the decision and consider whether the decision would be compatible with human rights.
  4. [157]
    A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality, and freedom.[47] In deciding whether a limit on a human right is reasonable and justifiable, the factors in section 13(2) of the HR Act may be relevant.
  5. [158]
    A decision the applicant’s case is an “exceptional case” is, in the circumstances here, compatible with human rights notwithstanding any limit it places on the applicant’s human rights. The decision is reasonable and justified by factors in section 13(2) of the HR Act. It is consistent with the object of the WWC Act to promote and protect the rights, interests and wellbeing of children and young people in Queensland and the principles for administering the Act, the welfare and best interests of a child are paramount, and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
  6. [159]
    Further, the decision is justified in that it promotes the protection needed by a child and is in the child’s best interests because of being a child, the right of every child recognised by section 26(2) of the HR Act.

Conclusion

  1. [160]
    The applicant has a history of offending and alleged offending, both in Australia and the United Kingdom, domestic violence and failing to care for children in her care. The offending includes charges of assaulting a young child and battery. Despite the offending being old, it remains a concern in the context of the applicant’s ability to care for a child in a way that protects the child from harm.
  2. [161]
    Further, the offending, and the material filed in the Tribunal, call into question the applicant’s ability to exercise restraint, and respond to stressors. The events giving rise to the charges suggest the conduct was a reaction to stress. On the evidence available, the Tribunal does not know how the applicant will react in the future in similar circumstances while a child or young person is in her care.
  3. [162]
    The offending otherwise evidences a propensity to disregard the law.
  4. [163]
    The applicant has illegally used drugs in the past. Now, she is being treated with medicinal cannabis. The known side-effects from medicinal cannabis treatment (both CBD and THC) include fatigue and sedation, vertigo, nausea and vomiting, fever, decreased or increased appetite, dry mouth, and diarrhoea.
  5. [164]
    Her reported medical conditions include complex PTSD, anxiety, and depression.
  6. [165]
    Unfortunately, the Tribunal is without evidence on the risks to a child in the care of a person lawfully using medicinal cannabis in circumstances where drugs have been illegally used in the past, or the risks to a child in the care of a person suffering from complex PTSD, anxiety and depression and being treated with medicinal cannabis.
  7. [166]
    The Child Safety information is replete with concerns about the applicant’s consumption of alcohol and use of drugs, and her care for children. The applicant’s failure to recall some incidents and drug scans put to her in cross-examination are matters of concern given the background to the incidents.
  8. [167]
    The paramount principle is the welfare and best interests a child. I am satisfied, having regard to the applicant’s history of offending, domestic violence, and Child Safety and medical information, it would not be in the best interests of a child to approve the applicant’s application for a blue card.

Order

  1. [168]
    The orders of the Tribunal are:
    1. The publication of information that may enable the applicant, members of her family, and others affected by this proceeding to be identified is prohibited.
    1. The decision of the respondent the applicant’s case is “exceptional” within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
    2. The application is dismissed.

Footnotes

[1] WWC Act, s 221(1).

[2] WWC Act, s 221(2).

[3] [2000] VSC 98.

[4] Unreported, 3 May 1991.

[5] [2011] QCATA 291.

[6] Ibid, at [31].

[7] WWC Act, s 353.

[8] the definition of prescribed period in section 353 of the WWC Act.

[9] WWC Act, 354(1).

[10] QCAT Act, s 20(1).

[11] QCAT Act, s 20(2).

[12] Reasons for decision, pp 12 and 13.

[13] Marked as exhibit A1.

[14] NTP 214.

[15] NTP 225.

[16] T 1-29.

[17] T 1-31.

[18] T 1-31.

[19] [2004] QCA 492.

[20] [2011] QCATA 87, at [16].

[21] [2010] QCAT 243.

[22] [2008] WASCA 28, at [28].

[23] [2015] QCAT 489.

[24] [2021] QCATA 142.

[25] [2021] QCAT 407.

[26] [2022] QCAT 305.

[27] [2015] QCAT 489, at [83].

[28] Transcript, 1-26.

[29] Transcript, 1-28.

[30] Transcript, 1-28.

[31] Transcript, 1-23.

[32] Transcript, 1-23.

[33]IHI v Director General, Department of Justice and Attorney-General [2021] QCAT 206, at [84].

[34] Schedule 7 to the WWC Act.

[35] DFVP Act, s 23(3).

[36] [2021] QCATA 142.

[37] Ibid, at [52]. Adopted in Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 34, at [47].

[38]Guidance for the use of medicinal cannabis in Australia: Patient information, Therapeutic Goods Administration (1 December 2017) (https://www.tga.gov.au/resources/resource/guidance/guidance-use-medicinal-cannabis-australia-patient-information).

[39] [2022] QCAT 102.

[40] [2021] QCAT 407.

[41] [2021] QCAT 121.

[42]ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102, at [54].

[43] [2004] QCA 492.

[44] [2008] WASCA 171, [109].

[45]  HR Act, s 48.

[46] HR Act, s 58.

[47] HR Act, s 13(1).

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2024] QCAT 271

  • Court:

    QCAT

  • Judge(s):

    Member Scott-Mackenzie

  • Date:

    04 Jul 2024

Appeal Status

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

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Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
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Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
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IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206
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TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489
3 citations
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TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
2 citations
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Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142
3 citations
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Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
2 citations
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Cite 1 - [2010] QCAT 243
Cite 2 - [2010] QCAT 243

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MSF v Director-General, Department of Justice and Attorney-General [2024] QCAT 3432 citations
1

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