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NMK v Director-General, Department of Justice and Attorney-General[2024] QCAT 491

NMK v Director-General, Department of Justice and Attorney-General[2024] QCAT 491

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

NMK v Director-General, Department of Justice and Attorney-General [2024] QCAT 491

PARTIES:

NMK

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML069-22

MATTER TYPE:

Childrens matters

DELIVERED ON:

24 October 2024

HEARING DATE:

9 August 2024

HEARD AT:

Brisbane

DECISION OF:

Member Hemingway

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that NMK’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  2. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of any statements, documents or other materials relating to these proceedings is prohibited to the extent that such could identify or lead to the identification of the applicant, any child, witness or third party in these proceedings.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks a review of decision to issue a negative notice and cancellation of  working with children clearance – where change in criminal history without any serious or disqualifying offences – where offences involved possession and supply of dangerous drugs and serious assault of a police officers – domestic violence protection order without admissions – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66, s 19

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 167, s 221, s 226

Human Rights Act 2019 (Qld), s 8, s 58, s 31

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

Re TAA [2006] QCST 11

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

Briginshaw v Briginshaw (1938) 60 CLR 336

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303

SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252

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

Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86

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

APPEARANCES &

REPRESENTATION:

Applicant:

Mr Burgess of Counsel instructed by ATSIL’s solicitors 

Respondent:

Ms Davis; in-house government legal officer of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    The Applicant, NMK, is a single self-employed person working as a personal trainer in the private sector who seeks a blue card to obtain employment in the disability sector. He shares joint custody of his only child, a daughter aged ten, with the mother of the child.  He states his intention is to become a youth worker and help support indigenous kids to make good life choices. He also wants to obtain disability support work with his brother and mother having lost a sister to cerebral palsy.
  2. [2]
    The Applicant first held a blue card (working with children clearance) between 2010 and 2012. He made a further application in 2020 and as a result of the change to his  criminal history, the Respondent sought submissions from him as to why he should not be issued with a negative notice. The Respondent made those requests in correspondence dated 6 August 2020, 14 July 2021 and 24 August 2021. The Applicant  made oral and written submissions on 10 August 2020 and 24 August 2021 and a number of oral submissions dated 13 May 2021, 24 May 2021, 29 June 2021, 16 July 2021, and 2 September 2021 to the Respondent.
  3. [3]
    The Applicant was issued with a negative notice by the Respondent on 3 February 2022. The Applicant applied to the Queensland Civil and Administrative Tribunal for a review of the decision of the Respondent to issue him with a negative notice on 25 February 2022.
  4. [4]
    The Applicant has a criminal history between 2006 and 2015. The offences in the criminal history between 11 December 2006 and 14 November 2008 relate to property offences and in one instance to a charge of wilful damage on 22 August 2008 which was struck out. 
  5. [5]
    The balance of the offences between 19 March 2009 and 13 June 2015 relate to a number of  drug-related offences. Also, there are charges and convictions for serious assault of police officers which resulted in a term of imprisonment with a parole release date of 19 October 2017.
  6. [6]
    This is an application for review of a decision by the Director-General (the chief executive officer), Department of Justice and Attorney-General that the case of NMK is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).

The Nature of this Review

  1. [7]
    The Negative Notice Decision is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act under which the Tribunal exercises its review jurisdiction.
  1. [8]
    The purpose of the review by this Tribunal is to consider whether the Applicant’s history and current circumstances constitute an exceptional case and to produce the correct and preferable decision with respect to the issue of a negative notice.[1] The review is made by way of a fresh hearing on the merits of the case.
  2. [9]
    In undertaking the review, the Tribunal considers the objects of the WWC Act which are to promote and protect the rights, interests, and well-being of children in Queensland through the administration of a scheme to screen persons seeking employment in particular areas concerning children or who operate relevant child- related businesses.[2]
  3. [10]
    The chief consideration in this review is that the welfare and best interests of children is the paramount consideration.[3] The Tribunal must apply the paramount principle in its review of the Respondent’s decision to issue a negative notice.
  4. [11]
    Section 221 of the WWC Act provides for the issue of a positive notice except where the chief executive finds an exceptional case applies. The decision under review is whether an exceptional case exists such that the presumption under section 221 is rebutted.
  5. [12]
    The legislation does not define ‘exceptional case’. It is a matter which should be determined on an individual case basis not hampered by a general rule.[4] The Tribunal must find an exceptional case exists if, based upon all considerations, it would harm the best interests of children to issue a positive notice allowing the holder an unfettered right to work with children in any capacity.
  6. [13]
    Therefore, because the Applicant has not been convicted of a serious offence or disqualifying offence, the Respondent must issue the Applicant a positive notice unless the Respondent is satisfied that this is an exceptional case.
  7. [14]
    The standard of proof required by the Tribunal is that it must be satisfied on the balance of probabilities. Neither party bears the onus of proof. The Tribunal is not bound by the rules of evidence but must observe the rules of natural justice in conducting the review.[5]
  1. [15]
    In reaching a decision, the Tribunal must also consider the mandatory considerations under section 226 of the WWC Act in addition to the paramount principle under sections 360 and 6(a) of the WWC Act and any other relevant factors.
  2. [16]
    It has been established that any hardship or prejudice suffered by the Applicant due to the Tribunal’s decision is not relevant to the finding of an exceptional case.[6] This is based upon the paramount principle which is that the best interests of children must prevail over all other considerations.
  3. [17]
    The Respondent has drawn the Tribunal’s attention to the WWC Amendment Act’s transitional provisions which relate to section 597 of the WWC Act.[7]

Primary Issue

  1. [18]
    Subject to legislative considerations, the issue in this proceeding is whether the offences, the background to them, and that which has occurred since, mean that the Tribunal concludes that the applicant’s case is  an ‘exceptional case’. This conclusion would mean that the Applicant is not entitled to a Blue Card. NMK argued that it was not and exceptional case. The Respondent’s representative submitted it was an exceptional case.

Criminal History and Circumstances of the Offending

  1. [19]
    NMK has convictions for a number of offences as follows: two charges of unauthorised dealing with shop goods and one charge of unlawful possession of suspected stolen property. In respect of these no conviction was recorded and fines were imposed totalling $580. There is one charge of wilful damage to property on the 22 August 2008, but this charge was struck out. He has a breach of bail charge from 2016 but this was dismissed.
  2. [20]
    NMK’s criminal history relates to drugs and drug-related equipment between 2011 and 2015 as well as assaults upon police officers in 2015.  At 21 years of age, on 7 April 2009, the Applicant was convicted and sentenced to a recognisance of $450 and to be of good behaviour for three months on a charge of possessing dangerous drugs and utensils or pieces that had been used on 19 March 2009. No conviction was recorded.
  3. [21]
    At 21 years of age on 30 August 2010, the Applicant was convicted and fined $700 for possessing dangerous drugs and utensils or pieces that had been used on 9 August 2010.
  4. [22]
    At 21 years of age on 14 March 2011, the Applicant was convicted and fined $900 in respect of a charge of possessing dangerous drugs (0.5 grams of cannabis) and for having a waterpipe in his possession on 23 February 2011.
  1. [23]
    In June 2015, police were stated to be conducting a protracted drug operation targeting the distribution of methamphetamine in Brisbane. As a result of information received, on 13 June 2015, the Applicant was the subject of a police search[8] where he was located in a shed at the rear of a property, together with his co-accused. Following a pat down search, the Applicant was found to have  four white packages of a crystalline substance in the front of his underwear. The Applicant resisted police who attempted to search and arrest him and ran. He was tackled to the ground by police and continued to resist arrest. The three police officers involved were injured in the altercation. Pepper spray was used to subdue the Applicant. He was arrested and declined an interview.
  2. [24]
    On 7 July 2015, the Police executed a further search warrant at the same property and located further materials including holographic seals. The co-accused of the Applicant was then interviewed by police during which he stated to police he sold four ounces of the drug to the Applicant prior to the arrival of police on 13 June 2015.
  1. [25]
    The Director of Public Prosecutions supplied the Court brief in respect of the 2015 offences to the Respondent on 14 June 2021 and 13 July 2021. 
  2. [26]
    NMK came before His Honour Judge Boddice on the 10 May 2017 in the Supreme Court of Queensland for sentence in relation to the  2015 offences. His Honour  commented that the applicant had made a timely plea of guilty and that this was in his favour. His Honour stated that the amount of the drug (84 grams of pure methylamphetamine) was a serious issue.
  3. [27]
    His Honour affirmed the Applicant’s contention that the drugs were not his and that he secreted them to protect his friend. His Honour stated that the methylamphetamine possession was a serious matter due to the quantity, but that the violence used by the Applicant towards police was the more serious aspect of his offending. His Honour took into account the Applicant’s age, personal circumstances, work history, depression and suicidality as well as a lack of past violent behaviour in the sentencing of the Applicant for these offences.
  4. [28]
    The  Applicant was convicted and sentenced for all drug offences to 18 months in prison with a parole release date set at 9 October 2017. In respect of the three serious assault charges and resisting and obstructing police and causing bodily harm he was sentenced to 18 months and 12 months respectively to be served concurrently with the sentence in respect of the drug offences with the same parole release date.

Specific factors a decision maker must consider in deciding if a case is an exceptional case

  1. [29]
    The Tribunal must consider the mandatory considerations under section 226 of the WWC Act. These include any sentencing remarks. Section 226 of the WWC Act contains these requirements:

Whether the offence is serious and whether it is a disqualifying offence

  1. [30]
    The Applicant has not been charged with or convicted of any serious or disqualifying offences.

Any information about the person given under sections 226(e), 318, 319, 335, 337, 338 of the WWCAct and under section 138ZG of the Disability Service Act 2006 (Qld)

  1. [31]
    No relevant information about the person was provided to the Chief Executive by the Director of Public Prosecutions or by Corrective Services under section 318 or 319. No report about the Applicant’s mental health was given to the Chief Executive under section 335. No information about the Applicant was given to the chief executive under sections 337 or 338 by the Mental Health Court or the Mental Health Review Tribunal.

Any decision or order regarding a review of or appeal against the decision or order and the reasons for the decision of order.   

  1. [32]
    There is no information in this regard.

Length of time since the event of conduct

  1. [33]
    The Respondent contends and the Tribunal accepts that it is obliged to consider the complete criminal history of the Applicant together with the case concerning the protection order. Despite the fact that it is six years since the 2015 offending occurred  it is still relevant to the eligibility of the Applicant to hold a blue card.
  2. [34]
    It has been established that although the offences occurred some time ago,

the passage of time alone is not determinative of whether or not a case is an exceptional case. Allegations and convictions may relate to events a number of years ago, but the passage of time alone does not detract from their seriousness. The decision-maker may consider relevant risk and protective factors.[9]

Relevance to employment, or carrying on a business, that involves or may involve children

  1. [35]
    The Respondent states they hold concerns about the Applicant’s suitability  to work or interact with children. The offences relate to drugs and also assault of police in the context of an arrest. The Respondent contends that children have a right to be protected from exposure to drug involvement and to be cared for by persons who are not affected by drugs such that their ability to provide care to children may be impaired. The Respondent contends that the evidence is that the Applicant’s drug use has continued and would be likely to detract from his ability to provide a protective environment for children in his care and to be an appropriate role model for children.
  2. [36]
    The Respondent holds concerns about his assault charges  in respect of police officers  which resulted in a term of imprisonment. The Respondent raises concern about the Applicant’s ability to exercise restraint, utilise appropriate conflict resolution strategies and to deal with difficult and or stressful situations in a rational and law-abiding manner. These skills are essential to adults working with children as children are totally reliant on the adults around them. 

In the case of a conviction - the penalty imposed by the court, and if it decided not to impose an imprisonment order for the offence, or decided not to make disqualification order under section 357, the court’s reasons for its decisions

  1. [37]
    The following passage from the sentencing remarks of Justice Boddice is relevant:

The purpose of sentencing you is on the one hand to ensure the sentence I impose provides a deterrent aspect, both general and personal on the other hand where appropriate  provides you with  the prospect of rehabilitation…I know it is going to be hard for you  by the courts cannot simply allow  a person to behave as you did, resulting in four officers  suffering injury,  three of which constituted bodily harm, in the course of their duties. It is also the case that the courts cannot allow a person even if they are hiding it for someone else, to have possession of such a huge amount of methamphetamine without suffering the appropriate consequences in respect of it.

The Applicant was sentenced to in relation to the possession of a dangerous drug schedule 1 exceeding schedule 3 but less than schedule 4 and the serious assault -assault/resist/obstruct police officer, person acting in aid of a police officer causing bodily harm charges. He was sentenced to a term of imprisonment for 18 months and with a recommendation for parole on 9 October 2017. A further sentence was imposed for the serious assault -assault /resist/obstruct police officer, person acting in aid of a police officer sentence was to a term of imprisonment for 12 months and with a recommendation for parole on 9 October 2017.

Respondent’s Case

  1. [38]
    The documents relied upon by the Respondent (BCS1-062) include:
    1. Reasons for decision - 21 June 2021
    2. Application form - 23 July 2021
    3. Criminal History Commenced - May 2020
    4. Letter requesting submissions - 2 September 2020
    5. Submissions received enclosing references and other material
    6. Negative Notice - 3 February 2022
    7. Notification of Negative Notice to Employer - 3 February 2022
    8. Material received following negative notice - Auscript 
    9. Material provided by Dept of Transport: Traffic Record 5 November 2011 to 4 November 2024
    10. Material provided by Department of Corrective Services - 13 May 2020.
  2. [39]
    The Respondent submits that the Tribunal must consider the supremacy of the paramount principle when considering if this is an exceptional case and to balance this against rights of the Applicant.
  3. [40]
    The Respondent also states that the offences, whilst not serious offences, are significant. The Respondent cites the effects  potentially on children and young people  because the harm caused by drug use is well documented and the costs to the community are high in terms of the health, welfare and family breakdown issues associated with drug use.
  4. [41]
    The Respondent submits that the absence of offending since 2015 does not necessarily signify a genuine rehabilitation, as at the time of the issue of the negative notice the Applicant remained on a two-year probation order (concluding in May 2022).
  5. [42]
    The Respondent’s submissions state that the material further suggests a lack of insight by the Applicant in relation to his on-going dependency on cannabis.
  6. [43]
    The Respondent does not consider that the Applicant displays sufficient insight or has adequately addressed the triggers for his offending.
  7. [44]
    The Respondent refers to the fact of the transferability of the blue card so that it cannot be made subject to conditions and would allow NMK to work in any child-related business or enterprise.
  8. [45]
    The Respondent raised further concerns in the process of cross-examination of witnesses and in closing submissions in support of its contentions. These are discussed below. 

Applicant’s Case

Documents relied upon by Applicant

  1. Application for Review - 9 March 2022
  2. Reasons document - 3 February 2022
  3. Written submissions on 10 August 2020 and 24 August 2021, and a number of oral submissions dated 13 May 2021, 24 May 2021, 29 June 2021, 16 July 2021, and 2 September 2021 
  4. Witness statement Mrs G
  5. Report Mr Jones
  6. Report Dr Palk.
  1. [46]
    NMK was represented in the proceedings and his Counsel stated that the offending was some nine years ago and that in this time the Applicant had taken considerable steps to develop insight and manage his behaviour  and that there were no current risk issues for him which would require the refusal of a working with children clearance. Mr Burgess stated that there were many protective factors. These include the facts that he has not re-offended, has completed parole without incident and has completed training in parental conduct and anger-management. Mr Burguess stated that there are a number of factors in the Applicant’s youth which have caused him to stray but that now he is a homeowner, engaged in work and cares for his daughter in a co-operative manner with the child’s mother.
  2. [47]
    NMK stated that he has undertaken training and holds Tafe-issued Certificates in Fitness III and IV and an Australian Institute of Fitness-issued Certificate IV in Massage Therapy Practice and a Fitness Institute Australia-issued Diploma of Nutrition and Dietetics for Personal Trainers dated 19 December 2017. He also holds approval from the Moreton Bay Regional Council for a permitted business in a public place, for Bluechip Fitness, dated 30 July 2020. He has consulted a psychologist, Dr Palk, in 2023 and engaged legal assistance. Dr Palk prepared a report dated 18 August 2023. He has undertaken courses in anger management and had lodged his own written submissions to Blue Card Services. He stated that he had a weekly routine with his daughter who lives with her mother. This involved taking her to sport training attendance, homework supervision and overnight care each second weekend. His mother lives only five minutes away and supports him in the care of his daughter.
  3. [48]
    The Applicant refers to certain life events which he asks the Tribunal to take into account. He refers to the care that he undertook of his now deceased sister who passed away at home in 2011. She was diagnosed with cerebral palsy and was cared for by the Applicant during his formative years. This curtailed his activities with his peers; for example, he was unable to have the activities with friends such as a sleep over due to her needs and care for which he was in large part responsible. He states in his submissions that:

My sister was high needs, unable to communicate, non-mobile, needing assistance with all facets of daily life. The carers had a strong impact on me growing up having seen the challenges my parents faced prior to having respite care for my sister. I would often help my Mum with tube feeding, bathing, ventilating and more.[10]

  1. [49]
    At age 15 he was involved with a car accident where he was hit by a four-wheel drive vehicle and he sustained a back injury. The resultant pain and its treatment remained an issue for him.
  2. [50]
    NMK states that he was deeply affected by the suicide of a relative. He  asks the Tribunal to consider his successful completion of his sentence and parole requirements  and the sentencing remarks of His Honour Justice Boddice made on the 13 June 2015 as follows:[11]
    1. The Judge accepted that although the quantity of drugs was large they were not the Applicant’s;[12]
    2. He was entitled to the benefits of an early guilty plea;[13]
    3. His offending was serious;[14]
    4. His assault upon the police was in the order of aggravated behaviour;[15]
    5. The Judge took into account his personal circumstances. His Honour stated that though he did have prior drug offences, not offences for violence, they were when he was younger and were related to cannabis use;[16]
    6. His Honour stated that the Applicant’s traffic history was appalling;[17]
    7. His Honour considered the Applicant’s age, that he had sustained an injury in a motor vehicle accident, had suffered the tragic loss of his sister and had suffered a depressive illness and suicidal ideation but that he had the love and support of his family;[18]
    8. His Honour stated that the head sentence should be three years but that he proposed to reduce the sentence in respect of his assessment of the overall criminality of the Applicant;[19]
    9. His Honour stated that in sentencing, he had regard to the Applicant’s personal circumstances and in particular his depressive condition as discussed in the report of Mr Jones.[20]
  3. [51]
    The Applicant submits that he has been self-employed since 2013.
  4. [52]
    The Applicant states that his personal circumstances evidence that he does not present a risk to children. He is aware of the need for children to be kept safe. He has strong family connections and support and is regularly at child-centred events. He maintains a regular routine of contact with his daughter.
  5. [53]
    He states that he cooperated with the police investigation and pleaded guilty early.
  6. [54]
    He states that the criminal behaviour is now behind him and the negative notice was a frustrating experience which made him feel useless. His goal is regaining his blue card so that he is able to work with family members in the disability sector or with disadvantaged Aboriginal youth as he is a First Nations man. He believes he does have the necessary insight and does not present a risk to children.  

Applicant’s Evidence

  1. [55]
    The Applicant was cross-examined about his continued use of marijuana after 2015. He stated that he used medicinal marijuana for which he had a script and that he most recently used this in winter 2024. He agreed that use of this drug meant a person was not supposed to drive.
  2. [56]
    He further stated that he had filled his script in 2021-2023, not often, perhaps every six months. He stated that he used the marijuana due to pain from his back injury. He stated that he fractured his spine in 2015 and had back pain. He was cross-examined about apparent inconsistencies in his electronic record of interview concerning the offences in August 2010. His reply was that he was confused about the various events being so long ago and that he smoked cannabis but did not own it. He denied trying to mislead Blue Card Services in his submissions.
  3. [57]
    The Applicant stated that when on parole he was drug tested and found to not be using.
  4. [58]
    The Respondent questioned the Applicant concerning the possible downplaying of his cannabis use. The Respondent asked whether the drug was used for pain or in a social context. The Applicant said he did not recall the specifics of the context of his use of cannabis as it was seven years ago.
  5. [59]
    The Applicant was questioned concerning a Protection Order in which he was named Respondent. It was dated 5 February 2009 and expired on 4 February 2011.
  6. [60]
    The Applicant stated that he did not attend court and did not tell his side of the story. He denies the allegations and maintains it was a bad time in his life and that the application was hearsay of the aggrieved. He stated that he did not agree that he participated in domestic violence. The relationship between himself and the  aggrieved lasted between 2006-2009.
  7. [61]
    The Applicant denied the allegations in the application of the Protection Order that he pushed and slapped the aggrieved and threatened her by text. He stated that he now had an amicable arrangement with the child’s mother (the aggrieved) for contact with his daughter shared with his mother.
  8. [62]
    The Applicant denied any memory of the 2007 charge of wilful damage to property which was struck out. He was convicted of unauthorised dealing with shop goods; a conviction was recorded, and he was fined $600. He stated that it was a box of plastic jewellery.
  9. [63]
    In regard to offences in 2015, he denied his alleged assault of police on 13 June 2015. He stated that he now thought he had a panic attack. He stated that he could have handled it differently but saw an open door and kept running. He stated that police got on top of him. He stated that he was pepper sprayed. He denied punching or kicking police. He stated that his biggest mistake was that he should have stayed calm. He stated that he was punched on the back, the site of his previous injury and that he was hit whilst being held down. He stated that he has now completed an anger management course and that helps him to identify triggers. He stated this back injury is unlikely to improve as it is permanent but has a flare up if he is not attentive to his health.
  10. [64]
    He stated that he saw Mr Jones for a pre-sentence report before the sentencing hearing on the 10 May 2017. He stated that Mr Jones’ role was to inform the counsellors whilst he was in prison to monitor his mental health whilst in prison.
  11. [65]
    He described his support network as his two brothers and parents and a nephew. He stated that these relationships were always good. He maintains a cordial relationship with the mother of his daughter and is devoted to his daughter’s welfare.

Referee Mrs G

  1. [66]
    Mrs G is a family friend who had known the Applicant for 20 years. She states that NMK is loyal caring and empathetic. He has shown this by the help he gave her with voluntary help with her two special needs daughters. He assisted the girls with community access to social activities, concerts, balls, shopping and meeting friends and fishing. Mrs G was aware the Applicant had been sent to jail. She considered him to be part of the family. She stated that she had no concerns about the Applicant being with her daughters. They both have downs syndrome. She did not consider him and had not observed him to be angry or violent. She stated she had never seen him experience a panic attack, quite the opposite.
  2. [67]
    Mrs G stated that she did not really know why he went to jail, but that around that time he was withdrawn and depressed. She stated that his back pain did not affect him. He could take her daughters out with no problem. She stated that he was always happy and smiling. She stated that he did not use illegal drugs. She stated that he managed any pain  by taking the view to get over it, get a massage. She treated him like a son. She stated that her daughters love him; they ‘adore’ him. Mrs G did not know why he was refused a blue card.

Referee Dr Palk

  1. [68]
    Dr Palk  stated he was consulted by the Applicant and gave a report dated 18 August 2023. The referral was for the purpose of a forensic psychological assessment regarding his current assessment health and risk of committing criminal offences as well as suitability for a blue card.
  2. [69]
    Dr Palk is highly qualified with wide experience in the criminal justice systems working with indigenous communities in the city and rural settings. He is a qualified lawyer, barrister and psychologist. He has previously held roles at senior management and director roles within the Queensland Corrective Services Department. He has held teaching and research position at the tertiary level and prepared numerous expert opinions for Courts, QCAT and Parole Boards. His psychometric assessments of NMK were detailed and extensive including:
    1. Mental health assessment;
    2. Personality Assessment Screener (‘PAS’);
    3. Drug and Alcohol Use Disorder Identification Test (DUDIT & AUDIT);
    4. Violence Risk Appraisal Guide (‘VRAG’);
    5. Historical, Clinical and Risk management Violence Assessment Scheme (‘HCR-20’);
    6. Hare Psychopathy test (PCL-R);
    7. Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (‘DSM-5’);
    8. The ICD-10 Classification of mental and behavioural Disorders (ICD).[21]
  3. [70]
    A breakdown of Dr Palk’s test results and findings is as follows:
    1. There is no evidence of violent offences pre or post the 2015 offences;
    2. NMK states the Applicant now manages pain through staying fit and gym work;
    3. NMK is well adjusted, with no evidence of psychosis or major personality disorders;
    4. NMK has excellent incidental recall, mental control, planning and perceptual processing, inhibitory control and verbal productivity;
    5. NMK does not have any cognitive impairments;
    6. NMK has excellent adaptive functioning skills with a history of employment;
    7. On the PAS test NMK was observed to be intelligent and emotionally resilient;
    8. His prior experiences showed evidence of adjustment problems following his being hit by a four-wheel drive when he was 15 riding his bike. His sister’s death at home following two decades of care had a great impact on his depression, previously managed with cannabis;
    9. He now presents, since the 2015 offences, as a person who copes with life’s stressors;
    10. The VRAG[22] scale considers past static factors and current dynamic factors. His scores place him in the low range of further violent offences;
    11. The HCR-20[23] test results indicate that the Applicant was raised in a supportive and loving family. He had a happy childhood with no health problems apart from the motor vehicle accident. A large part of his development was engaged in caring for his sister who had cerebral palsy. He excelled at school, entered university but left due to financial matters. He has a history of use of illegal substances, failed relationships but now shares 50/50 care of his daughter aged 10. Dr Palk concludes that NMK presents as an exceptionally low risk of acts of violence or any other kind of offending;[24]
    12. DR Palk opines that the Hare Psychopathy Test is considered exceptionally reliable and validated rating scale for the assessment of psychopathy in male forensic populations. It identifies four facets: interpersonal, affective, and affective conditions such as self-centredness, lack of remorse, insensitivity towards others, antisocial deviations, conduct relating to criminality, social deviance and criminal versatility and recidivism. Dr Palk reports that NMK’s score is well below the average prisoner’s ranking and falls well below the cut-off raw score of 30 to be classified as a psychopath. Dr Palk said that the Applicant displayed genuine empathy. He found no evidence of glibness, of grandiosity or  entrenched anti-sociability;[25]
    13. In conclusion Dr Palk states that NMK is not naturally inclined to anti-social acts and is at low risk of re-offending;[26]
    14. NMK completed parole successfully and maintained his employment and relationship with his ten-year-old daughter. He has taken steps to rehabilitate and is no longer dependent on cannabis. He impresses as being intelligent, emotionally mature, socially reserved by nature, resilient and self-confident despite his history of being troubled by anxiety, depression and PTSD;
    15. He meets the DSM-5 criteria for persistent depressive disorder (mild chronic depression).[27]
  4. [71]
    Dr Palk was cross-examined by the Respondent. He explained the differing views of Mr Jones from  his own in terms of the purpose of both reports and the fact that at the time of Mr Jones’ report, the Applicant was in an extreme crisis and facing incarceration. Dr Palk stated that his report  was centred on  the blue card criteria which Dr Palk assessed the Applicant as to be suitable to receive.
  5. [72]
    Dr Palk was not aware of the Protection Order or who was the aggrieved. He stated that he had not seen the police briefs because they were not included in the document entitled the Reasons. He stated he is careful to list all sources. He stated that he cannot recall if the Applicant showed him any documents in the interview. He responded as follows:

I mean, it – it would place him at a higher risk than somebody who’s had no history of violence, if I can put it in that context. But not necessarily at any more risk than any other person in the community if he’s matured and learned strategies to manage difficult relationships.[28]

  1. [73]
    He stated that in keeping with the most wide and recent research he does not support the use of medicinal marijuana.[29] He stated that he considered the recent research did not support its use and that there are limited efficacious outcomes, and the side effects were too deleterious, including dependency and mental illness and behavioural disturbance.
  2. [74]
    Dr Palk was questioned about the test reliability of the tests administered to the Applicant. The Respondent raised the issue of the discrepancies between his and the pre-sentence report of Mr Jones.[30]
  3. [75]
    Dr Palk responded that he believed that a report was of no value unless backed by psychometric tools. He was questioned about the VRAG test. He stated that in some testing the risks stay the same. His view was that if the person has learned new strategies, then  there may not be an escalation of risk.
  4. [76]
    In relation to a question regarding self-report bias, Dr Palk responded as follows:

Of course. We’re all like that. Even when we’re going for an interview, we might puff things up or put on a better front. I think that’s fairly human. But I – obviously I’m looking at collateral information. He’s successfully completed two – almost two years on parole or 18 months or 20 months or whatever after he’d done a few months or four months in jail. He’s successfully complied with that. Whether or not he was using marijuana illegally or not, I don’t know. I haven’t got any evidence of that. And all I can say is the probation and parole have taken no action against him. All I can say is there’s nothing on his criminal history since his 2017 conviction for an offence that occurred in 2015, which indicates to me he has been – been law-abiding for eight years, which says something about his ability to want to live a law-abiding lifestyle.[31]

  1. [77]
    In regard to Mr Jones’ finding that the Applicant was found to be suicidal, Dr Palk stated that

there were no signs of suicide. No signs of really major depression. That he was quite positive, operating, from a positive, effective framework. Had overcome his marijuana addiction and was quite proud of himself about not feeling the – he was still entitled to. He had a certificate and prescription, but he just hadn’t filled it for a number of months at that time because he felt he was doing quite well and was coping quite well.[32]

Respondent’s closing submissions

  1. [78]
    The Respondent continues to hold concerns as follows:

The inconsistencies in the Applicant’s evidence

  1. [79]
    The legislation in these proceedings is not premised on giving the Applicant the benefit of the doubt; rather, the paramount consideration in these proceedings is the best interests of children. In the Respondent’s submission, the inconsistencies were not able to be explained and are such that the Tribunal could have little confidence in the reliability of the Applicant’s evidence, including as reflected in the psychologist’s report.[33] The Respondent is concerned about the disparity between Mr Jones’ and Dr Palk’s respective reports as to the differing diagnoses and conclusions of both practitioners. The Respondent states that Mr Jones stated that the Applicant had a personality disorder and that this evidenced negative relationships and mood instability.[34]
  2. [80]
    The Respondent contends that Dr Palk holds a different view which is that the Applicant does not suffer from  these mental health concerns attributing the differing opinion of Dr Palk to the different tests administered by both practitioners and also to the fact of the Applicant’s self-report to Dr Palk. The Respondent contends that the Applicant’s statements to Dr Palk are not supported by any probative evidence.

The Applicant’s insight

  1. [81]
    The question remains as to how the Applicant can have insight into his behaviour – into behaviour where he does not accept what occurred and, further, his evidence about the domestic violence flies in the face of what the court found in 2009. Regarding his evidence surrounding the reasons he said he was remorseful in relation to the domestic violence order raised questions about his insight, as he indicated that he was remorseful for not arguing against the domestic violence order, not that he was remorseful for any actions, which I note includes very specific references to text messages sent.
  2. [82]
    The Respondent acknowledges the protective factors identified by Dr Palk in his report, including that the Applicant no longer relies on cannabis. However, the dependence on cannabis is not a settled issue from the Respondent’s perspective. The Respondent continues to raise the importance of illicit drug use and its potential effects upon persons seeking to work with children and the broader community.

Pre-existing protective factors

  1. [83]
    The presence of one or more ongoing risk factors section 226 of the WWC Act is relevant to the Tribunal’s review. The Respondent submits that the protective factors pre-existed and so do not now provide an assurance against re-offending as they existed prior to offending in 2015. These include the voluntary actions of the Applicant in regard to witness Mrs G and her children’s family support, and the Applicant’s employment pursuits.[35]

Applicant’s closing submissions

  1. [84]
    The Applicant contends that his case is not exceptional as there is overwhelming evidence that he has matured in the last nine years. Counsel states that the Applicant is credible, honest and reliable and did not shy away from his previous criminal offending. He contends that the impression that the Applicant was minimising his offending arises because of the suddenness of the call from Blue Card Services requesting oral submissions with no prior notice. Counsel states that the Applicant has served two years on bail, five months in prison, then two more years on parole with no breaches and no evidence of breach of parole. Counsel contends that his case of having overcome a history of marijuana use was strong. The Applicant submits the use of marijuana was for back pain. Counsel submits that the Applicant did suffer depression with the loss of his sister for whom he was a carer. His use of medicinal marijuana was episodic and in accordance with legal requirements. Counsel submits that the Applicant owns a home and is engaged in paying off the mortgage funded by his self-employment in his own business. Further he is amicable regarding shared custody of his daughter. There have been no complaints about his parental care of his child towards the other children in his life. He has undertaken courses to manage anger and post-separation parenting. The Applicant is a voluntary carer for his long-time family friend’s two daughters who have Downs syndrome. Counsel submits the assessments of Dr Palk evidence the Applicant’s low risk of re-offence with no current risk factors. Counsel submits that in respect of the domestic violence allegations that they remain untested but agrees that prima facie the acts are proved. Counsel makes the observations that the events are some 15 years ago. Counsel contends that the presentation of the Applicant together with the weight of evidence of Dr Palk’s reports justify a finding that this is not an exceptional case.

Consideration of the Evidence

  1. [85]
    ‘Exceptional case’ is not defined in the WWC Act. It has been stated that what constitutes an exceptional case is a matter of fact and degree. It is settled law that it is a broad discretion considering the merits in each case. Hardship or prejudice suffered by an applicant is irrelevant. What amounts to an exceptional case ‘must take it out and beyond the ordinary circumstances reasonably expected to occur’. It must be ‘of the nature of or forming an exception; out of the ordinary course, unusual, special’.[36]
  2. [86]
    In Chief Executive Officer, Department of Child Protection v Scott [No 2][37] the purpose, intention and outcomes of the review of a chapter 8 decision are explained as follows:

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. Similarly, if a case is exceptional due to identified risk factors, any benefit which might be thought to flow to children by having access to the applicant’s knowledge, experience or flair in working with children is of no relevance.[38]

Protective factors: 

  1. Satisfactory completion of his bail, incarceration, probation and parole supervision and conditions;
  2. No evidence of further offending;
  3. The stated high regard in which the Applicant is held by family, friends and the report writer;
  4. The Applicant’s stated commitment to remaining productive in the workforce;
  5. The Applicant’s changed behaviour regarding the contact arrangements with his daughter;
  6. Initiative and insight shown in securing a  home subject to mortgage;
  7. Despite a diagnosis of mild depressive disorder and PTSD and physical pain from a permanent back injury, he remains law-abiding and has no charges for any reoffence for drugs, violence or property offences since 2015.

Risk factors

  1. [87]
    In this case the Tribunal considers the risk factors to be: 
    1. The Applicant’s evidence appears to the Tribunal to minimise the seriousness of the offending and personal drug use, both illegal activities.
    2. The Applicant has limited insight into the connection between an acceptance of drug use and the effect on his capacity to work in child-related employment.
  2. [88]
    The Tribunal accepts that it is not required to balance risks and protective factors in determining if an exceptional case exists and should apply additional weight to any risk factors that are established.[39]
  3. [89]
    Section 226 of the WWC Act refers to certain factors the Respondent must have regard to in establishing if an exceptional case exists. These have been discussed above.
  4. [90]
    The Tribunal gives considerable weight to the sentencing remarks of his Honour Justice Boddice on the basis of the weight he has given to the evidence and then to penalty. The Tribunal notes that NMK gives conflicting evidence concerning the events of 2015. The Tribunal accepts that in the written submission dated 24 August 2021, it is clear he states that he was giving his side of the story. He states that he hopes that it gives you insight into my side of events.[40] In his oral submission dated 16 July 2021 he states that he doesn’t necessarily disagree with the facts as at the end of the day he pleaded guilty. The Tribunal takes into account the fact that these remarks are  what the Respondents’ officer heard by telephone and believed NMK to say.
  5. [91]
    However the remarks of the Applicant display both insight and acceptance. This counters the submissions of the Respondent as to how the Applicant can have insight into his behaviour – into behaviour he does not accept what occurred [sic]. The Tribunal finds that the Applicant has accepted his guilt and demonstrated in his behaviour and actions since 2015 that he has turned away from the previous behaviour. Likewise, his conduct in the intense atmosphere of the domestic violence proceedings has not been repeated and he has established appropriate behaviour towards the mother of his daughter. This in no way excuses acts of domestic violence, but shows the Applicant’s capacity for rehabilitation given the existence of the prima facie case for the protection order. The order was not breached or renewed.
  6. [92]
    The Tribunal takes the view that any inconsistency in evidence offered by the Applicant in written submissions with answers given in cross-examination are not deliberate. As I observed in the hearing, language and expressions of an idea by the Applicant are capable of different interpretations. Inconsistency does not necessarily lead to a conclusion that the writer is being deliberately deceptive or is being untruthful. The Tribunal accepts that  the Applicant’s insight is highly relevant and important and is a concern correctly raised by the Respondent in these proceedings. The Tribunal notes the decision in Re TAA[41] which describes the value of insight as follows:

The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children. The decision in AMP encapsulates the relevance of this aspect of the Tribunal’s consideration of the case.

  1. [93]
    Dr Palk’s opinion provides a strong case for the Applicant having now attained sufficient insight into his previous activities of dependency and criminal behaviour  as is demonstrated in these remarks:

He has learned to manage his physical pain and his mental health concerns. He is successfully running a personal trainer fitness company, caring for his body. His use, now, of cannabis is limited and only that of medicinal cannabis as you heard him explain. He has taken considerable rehabilitative steps, demonstrated and corroborated, in my submission, by the other evidence. The mere fact that one could get through two years on bail, successfully complete parole, and get to a point where he’s running a business, raising a child, paying off a house, speaks volumes to that proof of maturing as Dr Palk referred it to. He has completed successfully the Parenting After Separation Course. It had a component of anger management to it. And those sorts of courses and the actual evidence of his rehabilitation is the best evidence of proving, far from it, that he doesn’t have conflict resolution or anger management skills but, rather, that he does. There has never been any report about his behaviour as a parent against his own child, against his nephew or against these two girls with Down syndrome.[42]

  1. [94]
    The Applicant not only demonstrated insight but has considerable lived experience which equips him to fully appreciate the effect of making the wrong choices. His insight is demonstrated by his actions: the adherence to parole protocols, the making of arrangements for appropriate contact with his child and the child’s mother with no further discord, and an understanding of the need to secure their future with regular work and a home.
  2. [95]
    The Respondent is critical of  the weight given to the Applicant’s prosocial actions and questioned Dr Palk as to the basis of his conclusions about the Applicant which were based upon the Applicant’s version of events given to Dr Palk. The Tribunal is satisfied that Dr Palk was not blind to self-report bias or to the possibility of allegations of police being heavy-handed with suspects. The weight of Dr Palk’s evidence was not reduced by these contentions. The Tribunal considered Dr Palk’s broad experience of offenders, of the criminal justice system from many perspectives and the results of his psychometric testing outweighed any influence by biased self-reporting or biased claims by the Applicant in his interview with Dr Palk.[43]
  3. [96]
    The Tribunal also considered the decision in Chief Executive Officer, Public Safety Business Agency v Masri[44] but considered it might be  distinguished on the facts. The Applicant, Mr Masri, offered no evidence and did not attend the hearing. The decision at first instance was appealed successfully and the decision of the Appeal Tribunal returned the case to the Tribunal for a fresh hearing. In Masri’s case, an inference had been drawn by the Member in the first instance without knowing the background or circumstances of the offending. The Respondent refers to the remark of the Appeal Tribunal that:

The absence of criminal convictions for such behaviour is not probative evidence that Mr Masri does not engage in such behaviour only that he has not been caught doing so by police or that the QPS has not notified the Chief Executive Officer of any other charges or convictions.[45]

  1. [97]
    This Tribunal is of the view that this case is not exceptional because there is probative evidence in the conduct of the Applicant since 2015 that he has successfully ceased offending and rebuilt his life. It is therefore open to the Tribunal to give minimal weight to any argument that the Applicant has continued to offend, he just has not been caught.
  2. [98]
    This finding is based  principally upon the evidence of Dr Palk. The Tribunal rejects the submission of the Respondent that Dr Palk’s evidence is reduced in weight because it is based upon psychometric testing that is not as extensive as that of Mr Jones or that it is based on self-reporting by the Applicant. This finding rests upon the extensive experience of Dr Palk with the specific circumstances of a person such as the Applicant. Dr Palk has academic and firsthand experience of the corrections and criminal justice system. He is authorised to administer tests such as the Hare Psychopathy Test which requires the persons administering the test to be accredited.[46] The results of this test are especially relevant to the Respondent’s concerns about the alleged behaviour of the Applicant in the domestic violence context. The Applicant’s low score on 23 June 2023 was well below the cut-off score for a psychopath. Of note are the topics considered  in this test, such as self-centeredness, lack of remorse and insensitivity towards others, anti-social deviations of conduct relating to criminality, social deviance and criminal versality and recidivism (traits of instability and impulsiveness).[47] Such aspects of behaviour are frequently found in persons engaging in domestic violence and coercive control. This assessment is highly relevant in the  context of persons responsible for the care of children.
  3. [99]
    The Tribunal finds these assessments by Dr Palk support his conclusions that the Applicant is of low risk to children due to an absence of entrenched anti-sociality in his personality based upon the psychometric testing as well as his clinical opinion.[48]
  4. [100]
    The disparity between Mr Jones’ report and that of Dr Palk does not rest entirely upon the number or detail of various psychometric testing, but upon the different circumstances existing after the Applicant had completed a term of imprisonment then parole and moved on to establish a secure economic base and a history of no further offending, subject to my earlier remarks. 
  5. [101]
    Masri’s case also concluded that the Tribunal must find that the member drew appropriate inferences from the evidence. The Tribunal is satisfied that it has drawn inferences available on the evidence such that the following findings have been reached:
    1. that the Applicant has developed sufficient insight into the effects of his drug-related conduct upon friends, family and children, and the wider community;
    2. that the Applicant has expressed remorse for his actions at times by changed behaviour and persistence. This is not a case of simply becoming law-abiding as is a standard expectation of citizens: he has demonstrated an intention for a considerable time period to pursue a different course; 
    3. the Applicant has undergone accepted psychometric testing which concluded that he is a low risk of re-offence and does not display anti-social or violent characteristics such that he represents a risk to children.
  6. [102]
    The decision under review was whether the Applicant is an exceptional case which will displace the presumption in section 221 of the WWC Act. Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to the following matters:

...the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here…designed to protect: children.[49]

  1. [103]
    The Tribunal must be satisfied as to whether this is an exceptional case such that it would not harm the best interests of children for the Applicant to have a blue card. The test is not simply whether the Applicant poses a threat to children or not.
  2. [104]
    The standard of proof is that the Tribunal must be satisfied on the balance of probabilities[50] and bearing in mind the gravity of the consequences that an exceptional case exists. The burden of proof is not borne by either party. The Respondent’s submissions concerning sufficient probative evidence must be seen in this light.
  3. [105]
    The Respondent contends that the weight to be given to the protective factors is reduced on the basis that these factors were pre-existing and still the Applicant offended, calling into question his capacity for self-restraint.  The Tribunal rejects this line of reasoning on the basis that protective factors may have existed, but that they would gain more significance after the events of the offending in 2015 and the incarceration in 2017 and the parole period constraints. The Tribunal takes note of the genuine comments made by the Applicant regarding his appearance in the Supreme Court. He stated that:

On 13  June 2015, it was the worst day of my life…I am very sorry for the events that took place that day and I take full responsibility for my actions…this is not  a true reflection of my character, and the most recent incident was over ten years ago in 2011 and there has not been and will not be any incidents  moving forward. There is no excuse for my poor decisions on this day and I am terribly sorry.[51]

  1. [106]
    The Applicant  also expressed a distinction between his knowledge then and now. He states that following his sister’s death, I did not realise the impacts on my mental health and that of my family as grief was not dealt with properly.[52] Whilst the Applicant cites his care of his sister as a strength of character; he also failed to appreciate the complexity of its demands and tragic outcomes upon him. He understands this now and appreciates the support he receives from being in a close, caring family as a protective factor. He demonstrates that fresh understanding by the care and restraint he shows with the care of his daughter and civil interaction with her mother. This insight into his relationships is described in the decision in AMP v Director General Department of Justice and Attorney General.[53] In that case the member opined as follows on the subject of the demonstration of appropriate insight:

What was relevant in this proceeding in terms of the decision I was being asked to make is whether the applicant demonstrated insight into the Offences such that he possessed the ability to perceive clearly or deeply the inner nature of things, or a penetrating understanding of a complex situation or problem. In his presentation of his case, he demonstrated that he readily understood the circumstances that brought about the conduct which led to the Offences, and because he did so I was readily able to conclude that he could afford a child or young person the necessary guidance to assist them in reaching a similar understanding if faced with similar circumstances and thus the steps necessary to take so as to avoid being in those circumstances. Accordingly, it was my conclusion that the applicant did possess the requisite degree of insight into his Offences such that he presented as a person in whom the care of children or young people in an employment or business circumstance could readily be entrusted.[54]

  1. [107]
    The Human Rights Act 2019 (Qld) (‘HRA’) states that, when acting as a public entity the Tribunal is required to consider, “human rights Parliament specifically seeks to protect and promote,” “and to act and make decisions in a way that is compatible with human rights.” The Tribunal must also interpret statutory provisions, “to the extent possible that is consistent with their purpose in a way that is compatible with human rights.”
  2. [108]
    The Respondent cites the Tribunal’s decision in the case of SSJ v Director-General, Department of Justice and Attorney-General[55] concerning the application of the HR Act when the Tribunal is acting as a “public entity”.
  3. [109]
    The Respondent submits that there are a number of competing human rights relevant to the decision before the Tribunal. Both the rights of children and the Applicant must be considered.
  4. [110]
    The Respondent submits that the finding of an exceptional case will still be compatible with section 13 of the HR Act.
  5. [111]
    The Respondent also submits that any finding resulting in limitation on the Applicant’s human rights is still consistent with the object, purpose and paramount principle of the WWC Act which is that the welfare and best interests of children are paramount.[56]
  6. [112]
    The Tribunal is satisfied that the HR Act has been complied with and that it has:
    1. Given proper consideration to human rights relevant to the decision;
    2. Acted and made this decision in a way compatible with human rights; and
    3. acted reasonably in the face of statutory provisions, such as that containing the paramount principle.
  7. [113]
    Section 360 of the WWC Act requires the Tribunal to ensure that the protection from harm and the welfare and best interests of children is the paramount consideration when determining if an exceptional case exists.[57]
  8. [114]
    In the Tribunal’s view this is not an exceptional case because the test is not satisfied. That is, the exceptional case is one that does not conform to the general rule, the rule being that a working with children clearance must issue thereby allowing the applicant to be issued with a blue card unless there is an exceptional case established. Maher’s case states that it is necessary to consider each case on its facts.[58]
  9. [115]
    The Respondent refused a working with children clearance for the Applicant in part on the basis that his drug taking was not sufficiently explained and represented a continuing dependency and so a concern for a person with the care of children. The Respondent also contended that the absence of further charges was not evidence of an absence of dependency. The hearing was advised that the Applicant did not offend in the parole period. Again, the Respondent asserted that this was not necessarily conclusive of an absence of offending. The Tribunal rejects this line of reasoning as overly hypothetical.
  10. [116]
    The Tribunal has relied upon the following factors in reaching a decision that this  case is not exceptional.  The Tribunal finds that the Applicant’s conduct: in persisting with advocating his case; his life experiences which have led to the development of his character and insight; the additional training undertaken; the understanding he showed in his responses about his drug use; his stable work and home life and care of his child; and the clinical findings in his psychometric testing; together with the careful analysis of sentencing factors undertaken by His Honour Justice Boddice indicate to the Tribunal that a positive notice should be issued to the Applicant on the basis that this is not an exceptional case.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2) (‘QCAT Act').

[2] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.

[3]  Ibid, s 6(a).

[4] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [28].

[5]  QCAT Act, s 28(3)(a).

[6] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109] (Buss J).

[7]  The effect of the amendment is that some of the substantive changes to sections 221 and 228 of the WWC Act apply to these proceedings as in force on and after 20 May 2022, and that is relevant because the date of the negative notice in this proceeding was 3 February 2022.

[8]   The report indicates police were engaged in a protracted drug operation targeting methamphetamine distribution in Brisbane. As part of the operations police intercepted a message that a co-accused of the Applicant was to receive methamphetamine at 06.30 on 13 June 2015. Police applied for a search warrant and went to the property on 13 June 2015 at 07.30am.

[9] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210 [8].

[10]  Applicant Submissions undated but received 8 May 2023.

[11]  Sentencing remarks His Honour Justice Boddice para 35.

[12]  Ibid, para 15.

[13]  Ibid, para 5.

[14]  Ibid, para 10.

[15]  Ibid, para 20.

[16]  Ibid, para 35.

[17]  Ibid, para 35.

[18]  Ibid, para 45.

[19]  Ibid, para 40.

[20]  Mr Jones report dated 9 May 2017.

[21]  Dr Palk Report page 3.

[22]  Violent Risk Appraisal Guide.

[23]  Historical, Clinical and Risk management Violence Assessment Scheme.

[24]  Transcript Dr Palk Report page 10.

[25]  Dr Palk report para 11.

[26]  Dr Palk report para 0.05.

[27]  Dr Palk report para 11.

[28]  Transcript Dr Palk Report page 10.

[29]  Transcript page 1-66 para 4 Dr Palk.

[30]  Mr Jones 9 May 2017 BCS105.

[31]  Transcript Dr Palk page 1-73 10.

[32]  Transcript Dr Palk page 1-76 5.

[33]  Transcript Respondent’s final submissions 1-84 lines 40-45.

[34]  Transcript Respondent’s final submissions 1-82 line 20.

[35]  Transcript Respondent’s final submissions.

[36] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210 [8].

[37]  [2008] WASCA 171.

[38]  At [109].

[39] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7].

[40]  NMK Submission dated 24 August 2021 final paragraph.

[41] Re TAA [2006] QCST 11, [97].

[42]  Transcript page 1-80 Line 15-29.

[43]  Transcript Dr Palk page 1-71 first paragraph on page precedes line 5.

[44] Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [37]

[45] Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [37].

[46]  Report Dr Palk page 10 para 11.1.

[47]  Report Dr Palk page 10 para 11.2.

[48]  Report Dr Palk page 12 para 12.8

[49] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31].

[50] Briginshaw v Briginshaw (1938) 60 CLR 336.

[51]  Applicant submission dated 7 September 2022.

[52]  Applicant submission dated 7 September 2022.

[53]  [2024] QCAT 82, [75]-[76].

[54]  Ibid, [69].

[55]  [2020] QCAT 252, [110].

[56]  Respondent’s submissions dated 13 January 2021 para 73-75.

[57] Working with Children (Risk Management and Screening) Act 2000 (Qld), section 360.

[58] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2024] QCAT 491

  • Court:

    QCAT

  • Judge(s):

    Member Hemingway

  • Date:

    24 Oct 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
AMP v Director-General, Department of Justice and Attorney-General [2024] QCAT 82
1 citation
Jump To
Cite 1 - [2024] QCAT 82
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
3 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Cite 3 - (2008) WASCA 171
Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86
3 citations
Jump To
Cite 1 - [2016] QCATA 86
Cite 2 - [2016] QCATA 86
Cite 3 - [2016] QCATA 86
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
2 citations
Jump To
Cite 1 - [2013] QCATA 303
Cite 2 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 34
1 citation
Jump To
Cite 1 - [2022] QCATA 34
FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210
2 citations
Jump To
Cite 1 - [2016] QCAT 210
Cite 2 - [2016] QCAT 210
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252
2 citations
Jump To
Cite 1 - [2020] QCAT 252
Cite 2 - [2020] QCAT 252

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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