AMP v Director-General, Department of Justice and Attorney-General
[2024] QCAT 82
•21 February 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
AMP v Director-General, Department of Justice and Attorney-General [2024] QCAT 82
PARTIES: AMP (applicant)
V
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent)
APPLICATION NO/S:
CML 247-22
MATTER TYPE:
Childrens matters
DELIVERED ON:
21 February 2024
HEARING DATE:
24 August 2023
HEARD AT:
Cairns
DECISION OF:
Member Taylor
ORDERS:
1. The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 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.
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant’s blue card was cancelled following a conviction for possession of methylamphetamine – where the applicant had previously been convicted of a different offence under the Drugs Misuse Act 1986 (Qld) - where the applicant had made substantial changes in his life as a result of the second offence and conviction - whether the applicant demonstrated insight into his offending conduct
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66
Human Rights Act 2019 (Qld), s 13, s 15, s25, s 26, s 48
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 294, s 354
Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
Re TAA [2006] QCST 11
SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392
TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
YM v Director General, Department of Justice and Attorney General [2021] QCAT 224
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
R. Cross – Legal Officer for Blue Card Services
REASONS FOR DECISION
On 6 February 2023, this Tribunal gave a direction pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCATAct) prohibiting the publication of material in this proceeding to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or any non-party to the proceeding. For this reason, this document is published in a de-identified format.
Overview
From October 2019, the applicant held a Blue Card under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA), such permitting him to work with children and young people. In November 2020 he was convicted of possessing dangerous drugs. This ultimately caused the respondent to cancel his Blue Card and issue him with a negative notice in July 2022. In August 2022, the applicant applied to this Tribunal for a review of that decision, thereby effectively seeking to have his negative notice cancelled such that he could once again obtain a Blue Card.
As discussed in these reasons, the applicant succeeds in his attempt to do so. The reason for this is that, from the evidence as it was presented before me, I formed the view that the applicant had gained sufficient insight into his offending conduct and the causes for it so as to demonstrate that his circumstances were such as to not fall into the category of being an exceptional case. In my opinion, it could not be said it would not be in the best interests of children for him to be issued a Blue Card. I was therefore satisfied that the applicant’s case is not ‘exceptional’ within the meaning of s 221 of the WWCA. Accordingly the respondent’s decision was set aside.
Background
On 16 October 2019, the applicant was issued with a working with children clearance under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA). Such is generally referred to as a ‘Blue Card’.[1]
[1]The previously used terminology of ‘Blue Card’ has survived given its well-known reference, although now it is referred to in the WWCA as ‘working with children card’. It is noted in the material before me that he had previously been issued with Blue Cards in 2002 and 2004, and I mention that here for completeness only as nothing turns on this fact.
On 10 November 2020, the applicant was convicted on a charge under s 9 of the Drugs Misuse Act 1986 (Qld) of possessing dangerous drugs, namely 0.3 grams of methylamphetamine, such being found in a small ‘clip-seal bag’ in a compartment in his car during a routine search by Queensland Police. He had earlier been convicted on 11 January 2016 of a different offence under s 10(4A) of that Act, namely the possession of a hypodermic syringe or needle that has been used in connection with the administration of a dangerous drug having failed to have disposed of it as prescribed therein. Such was found concealed in a bag which he had with him in a car intercepted by Queensland Police. On each occasion, the discovery of the relevant drug and drug use implement occurred when police conducted a search of a car, on the first occasion in which the applicant was a passenger, on the second occasion being the applicant’s own car.[2] (the Offences)
[2]Ex 1 - BCS 17 to BCS 23.
Ultimately, on 6 July 2022 the respondent cancelled his Blue Card and issued a negative notice.[3] (the Decision).
[3]Ex 1 – BCS 57
On 3 August 2022, the applicant applied to this Tribunal for a review of the Decision.[4]
[4]The Application to Review a Decision was marked for identification as ‘A’ in the hearing (MFI A).
That application was heard by me on 24 August 2023. In conclusion of the hearing, the respondent provided a written Outline of Submissions,[5] which was expanded upon by way of oral submissions. The applicant provided only oral closing submissions.
[5]Ex 7.
Regrettably, whilst I had indicated to the parties at the conclusion of the hearing I anticipated having my decision made and reasons published by the end of October 2023, due to a number of issues arising unexpectedly before me since the hearing and more particularly in October to December 2023, my consideration of this matter was substantially delayed such that it has taken until now to reach a decision and provide these reasons. I offer my apologies to the applicant for that unfortunate delay.
The Nature of this Review Proceeding
This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, more particularly s 354 therein, read together with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I was required to exercise this jurisdiction in accordance with both those pieces of legislation and the Human Rights Act 2019 (Qld) (the HRA). In doing so I had all the functions of the decision-maker in terms of the decision to be made.[6]
[6]QCAT Act s 19.
The purpose of the review was to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits.[7] It was not necessary for me to consider whether the respondent’s decision-maker had made an error in making the Decision, rather the focus was on the cogency of the applicant’s case as presented in the hearing before me. At the conclusion of the review, I was empowered to confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter to the decision-maker for reconsideration with directions I considered to be appropriate.[8]
[7]QCAT Act s 20.
[8]QCAT Act s 24.
The Issue
The issue in this proceeding was whether the Offences, the background to them, and that which has transpired for the applicant since, are such as to lead to the conclusion that the applicant’s case falls within the category of an ‘exceptional case’ so as to deny him a Blue Card. The applicant argued that it was not. The respondent’s representative submitted it was.
In order to resolve that contest, consideration of WWCA s226(2) was necessary. It provides for a mandatory list of factors to be considered in deciding whether it was appropriate to issue a negative notice. In doing so, the following was not to be overlooked:
(a)The object of the WWCA is to promote and protect the rights, interests, and wellbeing of children and young people through a scheme requiring, as relevant in this proceeding, the screening of persons employed in particular employment;[9]
(b)The paramount consideration must be the welfare and best interests of a child, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing;[10] and
(c)The principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield,[11] such being a principle that I was mandated to apply in this review.
[9]WWCA s 5.
[10]WWCA s 6.
[11]As McPherson JA observed in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, speaking in terms of the predecessor legislation to the WWCA, namely the Commission for Children and Young People and Child Guardian Act 2000 (Qld): “Expression 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.”
A critical factor in this proceeding, as is the case in any proceeding such as this one, was the question of the degree of insight into the Offences that was held by the applicant at the time of the hearing. It is the criteria under s 226(2) of the WWCA that must be considered in terms of a consideration of fact and degree from which that could be determined, but in doing so always having regard to the interests of children.
The Relevant Law
Working with Children (Risk Management and Screening Act) 2000 (Qld)
The Decision in issue in this proceeding is to cancel a Blue Card and issue a negative notice. That invoked the operation of s 294 of the WWCA such that, on the review arising from the application to this Tribunal, the issue was to be decided as if it were a decision about a working with children check application. That led to s 221 of the WWCA which sets out that which I, as the effective decision-maker, was required to consider in determining it as if it were an application for a Blue Card.[12] For present purposes, in the circumstances of a conviction or charge being part of the applicant’s history, it required a consideration of that contained in s 226(2) to which I referred earlier herein.
[12]The Offences are not ‘serious offences’ for the purposes of the WWCA. Serious offences for the purposes of WWCA are as described in Schedule 2 to the Act.
Given that the applicant has been convicted, but not of a serious offence, under WWCA s 221(1)(b) the starting position is that the applicant is entitled to be issued with a working with children clearance unless it is an exceptional case.[13] If that starting position stood without exception, then it would be in order for me to set aside the Decision. It is that exception which is in issue in this proceeding. It is that the starting position is subject to the exception, such being that if I am satisfied the applicant’s case is one in which it would not be in the best interests of children for him to be issued with such a clearance, then a negative notice must be issued.[14]
[13]See WWCA s 221(2) and s 221(3)(a)(iii).
[14]WWCA s 221(2).
In turn, in the circumstances of this case, that would mean it would be in order for me to confirm the Decision. That is, the exceptional case in this context 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.[15]
[15]Consider Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [4].
But the WWCA does not define an exceptional case. It thus creates a degree of complexity in matters such as this application. In order to deal with that complexity, it required consideration of fact and degree with such to be decided in each case having regard to the interests of children. As it was expressed in Commissioner for Children and Young People and Child Guardian v FGC in reference to the predecessor legislation to the WWCA: [16]
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: (sic) children.
There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said that:
‘… it would be most unwise to lay down any general rule with regard to what is an exceptional case … All these matters are matters of discretion’.
We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.
[16]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] to [33]. Footnotes and citations omitted. The reference to ‘OAA’ is a reference to a decision of the Queensland Children’s Services Tribunal in OAA, Re [2006] QCST 14. The reference to the ‘Commission Act’ being to the Commission for Children and Young People and Child Guardian Act 2000 (Qld). Each of these are respectively predecessors to QCAT and the WWCA.
Neither party bore an onus in determining whether an ‘exceptional case’ existed.[17] It was a matter of discretion ultimately afforded me as the effective decision-maker in this review, such that I was required to decide the question of whether an exceptional case exists on the balance of probabilities.[18]
[17]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].
[18]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30], [34].
But in saying that, in undertaking that task it was not a matter for me to balance risk factors against protective factors in determining whether the applicant’s case was an exceptional one. In terms of such an approach, the following was observed in Commissioner for Children and Young People and Child Guardian v Eales:[19]
The error that is of concern arises when the original Tribunal uses a test for exceptional case that has been discredited by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC. The error is implicit in the original Tribunal’s explanation of what approach was endorsed by the Court of Appeal for finding whether an exceptional case exists or not in Commissioner for Children and Young People and Child Guardian v Maher. The original Tribunal had interpreted what was said by the Court of Appeal in the Maher case in the following terms: “…if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case.” With respect to the original Tribunal, there is no basis for that explanation or interpretation of the Maher decision.
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise. The Court of Appeal did not endorse a finding that this level of unacceptable risk is capable of constituting an exceptional case.
At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person. What was considered by the Court of Appeal was the presence of exceptional circumstances which were capable of rendering Mr Maher’s case as an exceptional case. What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criterion specified by the Act.
The Court of Appeal found that the exceptional circumstances identified in Maher’s case had taken the case outside the normal rule and thus had made it an exceptional case. No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording “unacceptable level of risk” was made by the Court of Appeal in the Maher Case.
In the FGC case in 2011, the Appeal Tribunal rejected the argument that principles brought across from the family law jurisdiction involving an unacceptable risk of harm should be resorted to in order to interpret what is meant by the phrase “exceptional case” in the Commission for Children and Young People and Child Guardian Act 2000. The Appeal Tribunal rejected the argument that the words in that phrase must be read and construed in a particular way, different from their ordinary meaning.
The Appeal Tribunal accepted that the phrase “exceptional case” must be considered in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect. The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.
It can seen (sic) from an analysis of the Maher and FGC cases that interpreting the facts of a given case through the prism of balancing factors to ascertain whether an unacceptable level of risk of harm is present is an error that is more than a matter of semantics. That approach sets up a test that is not part of the statutory process for determining whether a positive or negative notice should be issued. The Act does not set up a system whereby any case in which negative risk factors outweigh protective factors must result in a blue card being declined.
What the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act.
[19]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [5] to [12]. Footnotes omitted.
The criterion to which the Appeal Tribunal was referring is that now set out in s 226(2) of the WWCA. However, the matters listed therein are not exhaustive, it merely specifying particular matters which I must consider in deciding the application.[20] Accordingly later herein is my consideration of each of those particular criteria.
[20]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].
Human Rights Act 2019 (Qld)
There is also the application of the Human Rights Act 2019 (Qld) (HRA) that must be considered.[21] The main objective of the HRA is to protect and promote fundamental human rights. However the rights listed therein are not exclusive, nor are the rights protected thereunder absolute. They may be limited, but only as far as is reasonable and justifiable.[22] That being said, all statutory provisions, as far as is possible consistent with their purposes must be interpreted in a way that is compatible, or most compatible, with human rights.[23] Such includes the WWCA.
[21]I pause here to observe that the respondent’s decision-maker recorded consideration of the HRA in reaching the Decision (see Ex 1 BCS 12), and that the respondent’s representative in the hearing appropriately, albeit briefly, referred to the HRA in the respondent’s written submissions (Ex 7 para’s 75 to 77), but that the applicant did not raise any issue in his closing submissions or at any other time during the hearing as to his human rights or the application of the HRA.
[22]HRA s 13(1). The factors for determining what is reasonable and justifiable are set out in s 13(2) of the Act.
[23]Ibid s 48(1) & (2).
In my opinion a number of human rights were relevant in this proceeding. Such included the applicant’s right to recognition and equality before the law and his right to privacy and reputation.[24] But there was a competing right that could not be overlooked, and one that permissibly was considered by me in limiting the applicant’s rights in the circumstances of him seeking to be the holder of a Blue Card. That is the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[25]
[24]Ibid s 15 and s25. I pause again to note that his right to privacy is protected by the de-identification of these reasons.
[25]Ibid s 26.
In that regard, in my opinion a decision that the applicant’s case is an exceptional case, such which might be said to infringe the applicant’s rights to which I have just referred, will nevertheless be compatible with human rights. This is because, despite any limit the decision places on the applicant’s human rights, the decision will be justified by the factors outlined under s 13 of the HRA, inter alia because it will have the proper purpose of promoting and protecting the right, interests, and wellbeing of children and young people. Furthermore, any limitation on the applicant’s human rights remain consistent with the object, purpose and principle of the WWC Act, being that the welfare and best interests of children are paramount.
As is expressly provided for in the HRA, a human right may be subject under law only to reasonable limits, and in deciding whether a limit is reasonable and justifiable relevant factors include inter-alia the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.
That being so, it must be recalled that the welfare and best interests of a child are paramount, a consideration to which all other factors must yield. Thus, to the extent the applicant is afforded a right under the HRA, in making the correct and preferable decision, by application of the WWCA in conjunction with the HRA such right must yield to the rights of a child and so be limited in a manner permissible under the WWCA. That would include the making of a finding that the circumstance the applicant found himself in is an exceptional case such as to deny him an entitlement to a Blue Card. Such is consistent with s13 of the HRA.
Notwithstanding my decision in this proceeding was that his case was not exceptional, I applied that approach given that it was open for me to find his case was exceptional.
The Evidence & Submissions
This proceeding was not a traditional adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time it was not an inquisitorial process such that I was required to delve into the detail. My decision turned on the material presented to me in the hearing, both documentary and oral, as well as my observations of the applicant in the conduct and presentation of his case.
The respondent was not participating in an adversarial role advocating for the correctness of the decision by the decision-maker. The respondent’s representative’s role was to use her best endeavours to help me in making my decision on the review.[26] As she was required to do,[27] she provided material to this Tribunal, namely the Reasons for the Decision and other documents considered relevant,[28] including an ‘Outline of Submissions’ filed in advance of the hearing but which became her written closing submissions elaborated on by way of oral closing submissions.[29] The respondent’s representative did not otherwise seek leave to produce any further material at the hearing, nor did she call any witnesses.[30]
[26]QCAT Act s 21(1).
[27]QCAT Act s 21(2).
[28]Ex 1 & Ex 2.
[29]Ex 7.
[30]For completeness I pause here to note the following – In advance of the hearing the respondent had filed a ‘Statement of Evidence’ dated 23 March 2023, namely what was said to be two video recordings on a USB memory stick, said to show recordings of the police search of the applicant’s car on 9 October 2020 which brought about the conviction for possession of dangerous drugs. Whilst it was raised at the start of the hearing, and in turn marked for identification (MFI B) in the hearing, it was not ultimately tendered as evidence or otherwise referred to.
The applicant provided a written statement to this Tribunal, affirming it as his evidence in chief,[31] and in turn presented himself for cross-examination. He also tendered two pathology results of drug tests he had voluntarily undertaken.[32]
[31]Ex 3.
[32]Ex 4.
He called two other persons to give evidence. The first (W1) was a Salvation Army Case Worker who stated he knew the applicant having studied alongside him in a community services course, and also socialised with the applicant going fishing together or at the gym. As his evidence in chief, W1 affirmed the truth of a short written statement he had given which was previously filed in this proceeding.[33] The second (W2) was the applicant’s landlord in a share-house and also a friend of 5+ years, he also affirming the truth of a short written statement.[34] Both W1 and W2 were cross-examined, with the applicant undertaking short re-examination with W2 only. As noted earlier herein, the applicant concluded the presentation of his case in the hearing with short oral closing submissions.
[33]Ex 5.
[34]Ex 6.
Before turning to a discussion on the application of the evidence in terms of the relevant criteria under s 226(2) of the WWCA, it seemed to me it would be beneficial to any reader of these reasons for me to first set out those parts of the evidence presented which I considered relevant and of assistance in reaching my decision.
The applicant’s evidence & submissions
The applicant’s evidence in chief was of some assistance to me. Whilst relatively extensive in its content, in my opinion three paragraphs therein stood out as being indicative of the applicant as I observed him and listened to him during the hearing. I extract those here:[35]
I acknowledge and accept that the criminal charges … occurred five years apart. However, I have taken steps to ensure that I will not be in those positions again. At the time of my first offence, I was experiencing a lot of anxiety and was working in a job that was full-time working from home. I tried using a dating app to reach out and meet people, which is what resulted in the first criminal charge. … At the time of the second offence I was adjusting from just receiving a significant health diagnosis, which resulted in me using the same dating app to obtain company. This resulted in my second criminal charge. …
I have since undertaken counselling to improve my mental health and ability to handle such stressors. I have identified my triggers for these events to be:
(a) the people that I was spending time with;
(b) my anxiety at the time of the offences and at the first instances; and
(c) my job and community.
By this I mean, who I surround myself with is a large part of my circumstance and I accept and acknowledge that. I express great remorse for finding myself in the situations that led to the criminal offence and it is a situation I never intend to be in in the future. The most important thing to me is my job and helping people.
I have now gained insight into the triggers and circumstances that contributed to my criminal charges. I now understand that the social circles I surrounded myself with at these times were bad influences. In an effort to no longer interact with such bad influences, for the past two years I have no longer used the dating app (and other dating apps) that I had originally used to meet with the people who enabled my offending. I realised that using these apps was a big risk for my safety after the second criminal charge …
[35]Ex 3 para’s 4 to 7.
The remainder of his evidence in chief was more general in nature of not of great assistance to me. In particular I mention here is drug test results,[36] such being provided voluntarily as compared to be independently ordered and conducted at random. Whilst the reason for the provision of same was understood by me, they were nothing more than results at specific points in time which could be said to have been determined and selected by the applicant at a suitable time based on an absence of drug use preceding that time. Thus the probative value of these test results was minimal to none.
[36]Ex 4.
The cross-examination of the applicant was extensive, with many of the applicant’s answers assisting me in understanding his current views on what had occurred previously, and thus informing me as to the degree of insight he held.
When he was asked about the circumstances of the first offence, he stated that there was an element of peer pressure to it, and then asked how he would deal with such a circumstance today, his answer was words to the following effect:
I have recently experienced it and immediately withdrew from the situation.
He was later asked about the circumstances of the second offence. In answer to a direct proposition put to him from the respondent’s representative as to the drugs found being his and that he knew they were there, his answer was ‘No’ indicating he denied guilt. When it was put to him that he refused to give the name of this person to the police he agreed, but could not offer any meaningful reason as to why other than to say at the time he was overwhelmed.
Such as I understood that was consistent with what he had said in a submission to the respondent in response to information contained in a police report when the respondent was reassessing the applicant’s eligibility, that being as follows speaking in terms of the police search of his car:[37]
I … explained how I had only received my car back from a friend who had borrowed this that day to go to the beach. This took a turn as the person I had loaned the care to left something in there and this was no in eyes of the law in my possession and I must abide the proceedings that come from this. The item was mentioned on QP9 as 0.3 grams of crystals that was found in a closed compartment of my car.
This person I knew & the suspicion that this person may have issues with AOD was not a concern until this occurred & [I] (sic) asked for their assistance in this matter and they were not cooperative …
[37]Ex 1 – BCS-51.
When this passage was raised with the applicant in cross-examination, I asked him how he would react today in the same circumstances, to which his answer was words to the effect:
I would give them up.
As the cross-examination continued, the applicant was asked about the extent to which he had (if at all) engaged in drug use since the second of the Offences. In answer to questions from me, he said:
(a)He has personally never been tempted to engage in drug use;
(b)Others have tried to tempt him, and he has immediately walked away and not further engaged with them.
The evidence of W1 was also of assistance to me. In his written statement he included this comment:[38]
I would not be writing this letter if I did not believe that [applicant named] had showed commitment to positive change. … I feel it should be noted that [applicant named] began work with Alcohol Tobacco and Drugs (ATODS) counselling in Cairns, Psychologist appointments … and 3 Employment (sic) assistance program counselling. An indication I feel is indicative of his commitment to personal change and no longer place (sic) himself in the situation to commit an offence again. …
[38]Ex 5 last paragraph.
When asked under cross-examination as to what he knew the applicant had done since 2020 and thus not return to drug use, W1 said that the applicant had changed his circle of friends and was now meeting people in different ways, was now attending the gym, and was talking more about the challenges he was facing.
W2 was equally helpful in assisting me to understand more clearly the manner in which the applicant had changed since the second of the Offences. The following part of his written statement stood out as being relevant:[39]
I have seen for myself the massive impact that the incident in 2020 has had on his life not only effecting (sic) his financial position but also as a consequence his mental health immediately thereafter. … He has taken full responsibility to take all necessary steps in creating a healthy environment for himself this includes but is not limited to cutting ties with people in his life that are of negative influence, eagerly taking on board information and tools provided for him in the drug rehabilitation course and using those tools in his life choices, one obvious example of this was his determination to cut out smoking and since June 2021 he hasn’t looked back … .
I have also had the pleasure to witness his interactions with co-workers and client’s families with children at work functions …
… [applicant named] has taken to be in charge of his life to use this opportunity to grow and develop into the person I know and appreciate today. …
[39]Ex 6 - 2nd to 4th paras.
The relatively short cross-examination and subsequent re-examination did not provide me with anything which caused me to change the view I held of that which W2 had to say in his statement, that being as I interpreted it that the applicant had improved substantially as a person and the control of his life since 2020.
The respondent’s submissions
In her oral closing submissions, the respondent’s representative properly acknowledged the applicant’s admissions of drug use, the positive comments of W1 and W2, and the changes the applicant had made in his life in recent years. However, her submission was that the respondent still held concerns about the applicant’s appropriateness to be the holder of a Blue Card because:
(a)He had not been entirely forthcoming in his material presented to the respondent earlier concerning his drug use;
(b)There was an indication in the applicant’s material of minimization of the conduct that led to the Offences;
(c)W1 and W2 were not fully appraised of the applicant’s earlier drug use, thus indicating an absence of full disclosure by the applicant.
In terms of that last point re the absence of his witnesses being fully appraised, the respondent’s representative referred me to the decision of mine in YM v Director General, Department of Justice and Attorney General [2021] QCAT 224 at [96], to which I return later in these reasons.
On these bases, the respondent’s representative submitted that the applicant’s case remained an exceptional case.
For the reasons I explain in the paragraphs that follow here when considering the relevant criteria, and on the premise of the applicant’s evidence to which I have just referred, I do not agree with that submission. Whilst those three points can readily be said as being accurate, in my opinion they do not derogate from the circumstances the applicant was in as I observed and understood them to be at the time of the hearing, such demonstrating his development since the second Offence and the extent to which he has improved having appropriately reflected on what caused him / led him to the Offences. That being so, as I discuss in the paragraphs that follow here in terms of the relevant criteria, I could not reach the conclusion that the applicant’s case was exceptional.
I thus now turn to those criteria, but before doing so for completeness make this short observation. The respondent’s representative properly addressed me in her written Outline of Submissions on each of these criteria.[40] The applicant did not make any such submissions.
[40]Ex 7 para’s 42 to 74.
The Relevant Criteria
Whether the offence is a conviction or a charge[41]
[41]WWCA s 226(2)(a)(i).
The Offences gave rise to convictions.[42] His only other recorded criminal history is some traffic offences.[43] Notwithstanding such is the entirety of the applicant’s recorded criminal history, such is not a discounting factor given that the Offences did amount to a conviction and as such they remained a relevant factor in my consideration of the matter in issue in this proceeding, namely whether his case was an exceptional one. In my opinion, the fact that it went beyond merely a charge weighed in favour of his case being an exceptional one, however not sufficient to weigh against the positive findings I reached on other criterion.
Whether the offence is a serious offence, and whether it is a disqualifying offence[44]
[42]Whilst no conviction was recorded for either Offence (See Ex 1 BCS 17) for the purposes of the WWCA the decision of the Court is a ‘conviction’.
[43]Ex 2 NTP-8.
[44]WWCA s 226(2)(a)(ii).
The Offences are neither a serious nor a disqualifying offence under the WWCA. Notwithstanding that, the nature of the Offences remains relevant in determining the eligibility of the applicant to work with children in regulated employment, such being the intention of parliament in enacting this provision within the legislation.[45].
[45]Consider the Explanatory Notes pg 11 to the Commissioner for Children and Young People Bill 2000, being the Bill to the enactment of the WWCA in its original name.
Although, that being said, in the same manner as I have just indicated under the last criterion, the seriousness of the conduct that led to the Offences was not sufficient to weigh against the positive findings I otherwise reached.
When the offence was committed[46]
[46]WWCA s 226(2)(a)(iii).
The Offences occurred in 2015 and 2020. That being said, it could not be said that a significant passage of time has passed since, which if it had in some instances it might diminish the weight to be attributed to the conduct giving rise to the Offences when considering the question of an exceptional case.
In this case, the relatively short period of time is important because it is within that passage of time the applicant should have, if he was going to, gained the requisite degree of insight into his offending behaviour. As I have said in other similar matters, the longer the passage of time, the greater should be the prospect that the applicant would have, and should have, gained that insight.
However, unlike what I have seen in many other matters such as these, in that relatively short passage of time, in my opinion the applicant has developed a sufficient and adequate degree of insight into what brought him to the conduct which led to the Offences, and has taken steps to correct that so as not to repeat it.
The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children[47]
[47]WWCA s 226(2)(a)(iv).
As I often hear the argument from applicants in these types of matters, the Offences did not involve children, thereby seemingly seeking to distant it from being relative in their case for holding a Blue Card. But, thankfully this is not one of those occasions.
In his statement the applicant made the following comments:[48]
I recognise how terrible the decisions were that ultimately led up to my offending, and I have implemented these lifestyle changes to ensure that I am never in the same situation again.
…
In the period following the offences, I have continued to take positive steps in my life including upskilling by completing a Diploma in Community Service. … I want to be able to help young adults … dealing with difficult times in their life and this is the reason that obtaining a Blue Card is so important to me. I understand that considerations of children are a paramount consideration when providing a Blue Card.
[48]Ex 3 para’s 11 and 13
As written they were close together in the statement but were not part of the one paragraph, however in my opinion they can be read together as an indication of the thoughts and views held by the applicant which relate to this criterion. Whilst such a submission from the applicant carried weight in his favour, the respondent’s competing submission on this criterion, which included the following comment, was not overlooked by me:[49]
The Applicant’s convictions for fail to properly dispose of needle and syringe and possessing dangerous drugs raises questions about his use of illicit drugs and his ability to provide a protective environment to children [in] (sic) his care. His drug-related offending in 2020 is aggravated by the fact that, at the time of his offending, he was a blue card holder. Children have a right to be protected from exposure to drug involvement and to be cared for by persons who are not engaged in drug related activities that may impair their ability to promote and protect the best interests of children. Continued drug use by the Applicant would be likely to detract from his ability to provide a protective environment for children in his care.
[49]Ex 7 para 49. Italicisation is as it appears in the submission.
I agree with that submission. However I do not consider it to be an accurate representation of the applicant as he appeared before me and presented his case for a Blue Card. The questions that arise as referred to in this submissions were in my opinion adequately answered by the applicant, with him showing me that notwithstanding the Offences he recognised the circumstances that brought them about and in no way could it now be said his ability to provide a protective environment for children or young people in his care has been compromised. Moreover, there was no evidence before me to show, or from which even an inference could be drawn, that the applicant was engaged in drug related activities, and/or that his drug use had and was continuing.
In all respects, whilst the circumstances of the Offences are directly relevant to employment or the carrying on of a business that involves children and/or young people, on the applicant’s case as he presented it, and the respondent’s material presented to assist me in evaluating that case, I was unable to find anything within this criterion that led me to a conclusion the applicant’s case was an exceptional one.
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 … the court’s reasons for its decision.[50]
[50]WWCA s 226(2)(a)(v).
As the respondent’s representative has appropriately noted in her written submissions, the applicant was fined and subjected to a good behaviour bond. In handing down such a sentence for the second Offence, the learned Magistrate noted the applicant’s plea of guilty, his lack of any significant criminal history, and his lack of willingness to undertake relevant drug rehabilitation programs.
These comments indicate to me that it was recognised by the Court the applicant had taken ownership of his circumstances. If that was only superficial at the time, on what I heard during the hearing and have read from the material before me, I am now satisfied that it has gone well beyond being superficial and is now fully understood and accepted as being an issue the applicant has had to deal with.
For this reason, in my opinion the sentencing remarks made by the learned Magistrate do not lend any weight against the applicant in this proceeding.[51]
Anything else relating to the commission of the offence I reasonably consider to be relevant to the assessment of the applicant[52]
[51]I had not made any specific reference to the sentencing remarks related to the first of the Offences. They were for all relative intent and purpose non-existence, merely simply passing a sentence of a fine with time to pay. There was no commentary supporting it given by the Magistrate (or at least none recorded in a transcript) – See Ex 1 pg BCS-69.
[52]WWCA s 226(2)(f). I need not have regard to ss 226(2) (c) to (e) as they are not relevant.
In my opinion it is within this criterion that the issue of insight more fully falls. This is particularly so in terms of whether the requisite degree of insight has been shown to exist to the extent it is relevant to assessing the reduction of the risk demonstrated by the Offences.
That being said, whilst I have already discussed the other criteria in terms of the issue of insight being shown, here I discuss the issue of insight more fulsomely because, as I have already indicated earlier in these reasons, in my opinion it is the applicant’s possession of genuine insight which is the critical factor in the consideration of his application to once again effectively obtain a Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA: [53]
The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. … 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.
[53]Re TAA [2006] QCST 11, [97] cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128].
There are however other cases which highlight the importance of insight in assessing whether the risks associated with an applicant’s past conduct have been reduced.
The first is found in the matter of Commissioner for Children and Young People and Child Guardian v Lister (No 2) wherein the Appeal Tribunal considered the issue and expressed this observation: [54]
Having considered Ms Lister‘s oral and written submissions about her past conduct, the Appeal Tribunal is left with a real concern about drawing the conclusion that the risk is reduced by the passage of time without incident. Both the Trial Judge and the Court of Appeal referred to Ms Lister‘s lack of remorse. Likewise the Appeal Tribunal has seen little indication of remorse or insight in Ms Lister‘s current attitude to her offences ….
Ms Lister continues to minimize and justify her conduct …
These are recent statements which reveal her current views. They suggest the passage of time has not been accompanied by a genuine change in Ms Lister’s views about these matters. They leave the Appeal Tribunal with a reasonable apprehension that the passage of time without further offence does not mean that the risk has been reduced.
[54]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87,[53] to [55].
I also made a similar observation in SS v Director-General, Department of Justice and Attorney-General, wherein I had cause to consider the issue of the passage of time in reference to the level of insight demonstrated by an applicant, stating: [55]
Notwithstanding that this all occurred now many years ago, in the circumstances of the applicant still expressing these views today it leads me to only one conclusion, that being he has not accepted that his conduct was not socially acceptable.
[55]SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392,[68].
Whilst these comments were made in terms of circumstances where there had been a lengthy passage of time between the relevant offending conduct and the application before the Tribunal where the views of the applicant had not seemingly changed over that time, such which might suggest they are distinguishable from the applicant’s case given the applicant before me in this proceeding has not expressed any current view that his conduct was socially acceptable, in my opinion these comments are still relevant. This is because, in this proceeding not only has the applicant not expressed a view that his conduct was either socially acceptable, or at the very least not socially unacceptable, having listened to him and observed him during the hearing I was left with the very clear impression that his current view is that his conduct that brought about the Offences was entirely unacceptable, not just personally but in society in general. That being so, unlike the circumstances in the cases of Lister and SS to which I have just referred where the applicants therein and not demonstrated that they had in any way become aware of the true nature of their conduct, here the applicant before me has demonstrated to me the development of that awareness.
In turn, in my opinion this answers the concern the respondent’s representative raised with me concerning the absence of W1 and W2 being fully appraised of the applicant’s earlier drug, and the earlier decision of mine to which she referred me, as I mentioned earlier at paragraph [46] herein. As I mentioned therein, I would return to this case later, such which I do here.
The paragraph of my reasoning in YM to which I was referred is contained in the following extract, however I have also extracted the paragraph which immediately follows it because I consider that it shows the context of my earlier comment:[56]
[93] Of greater concern however is the fact that, notwithstanding his statement that the capsules in his possession on the night were for his personal use, he gave evidence under cross-examination that he had purchased this bulk quantity together with his mates having chipped in to purchase them, and then was carrying that volume of drugs for a birthday weekend to be shared with his mates as they needed them. It can readily be discerned that the applicant’s evidence is entirely contradictory, and in my opinion, it is indicative of a person who has failed to own up to the true and real consequences of his actions because of a failure to properly understand what they are.
[94] There is also his evidence of other drug taking activities prior to the Offence, namely cannabis and cocaine, none of which is addressed in any way in the psychologist’s reports, being either the one from ATODS or his private psychologist.
[95] Related to this is his evidence that his earlier drug taking was occasioned by ‘bad times’ but then the quick recanting of such evidence when challenged with the fact that he had given evidence in his Life Story as to drug taking as a young teen and the extent to which he got on the MDMA for a night out and would party the whole night.
[96] Moreover, there is also the evidence of an absence of knowledge being held by his mother and his other witnesses he called as to the entirety of his drug taking activities. I am left with the impression that he consciously withheld that information from them. Whilst he stated under cross-examination that he was ashamed of it, a fact which I neither accept nor reject, once again the absence of his having owned up to this behaviour by way of complete disclosure is indicative of a person who has failed to own up to the consequences of his actions because of a failure to understand what those consequences are.
[97] He seeks to suggest, as I have noted it in paragraph [32], that he has sought assistance from friends, family, and medical professionals to ensure that he does not fall back into the behaviours that caused the Offence. The difficulty I have with such a statement is that if his family and medical professionals did not know of the earlier behaviour of drug use, on what basis can it be said they have assisted him in not falling back into that behaviour.
[98] Additionally, there is the entire absence of any evidence from his circle of friends to attest to any substantial change in his behaviour, or as to any fact to support his bare assertion as to him having ceased drug use, or to a change in the circle of friends.
[56]YM v Director General, Department of Justice and Attorney General [2021] QCAT 224,[93] to [98].
Whilst it is the case on the evidence before me W1 and W2 were not fully appraised of the applicant’s earlier drug taking activities, that fact alone does not give rise to my observations and conclusions concerning YM being relevant in the present proceeding. The facts that were before me concerning YM, and on which those observations and conclusions were premised, are substantially different to the facts that were before me in this proceeding. Here, not only was there evidence from others as to their observation of changes in the applicant’s behaviour, but there was also evidence from each of W1 and W2 that they are firmly of the view the applicant no longer engages in drug use. My decision in YM is distinguishable for that reason.
In her closing submissions, the respondent’s representative also raised some other issues under this heading,[57] inter-alia making these submissions:
… the extent of insight and accountability demonstrated in his material to date is sufficient to mitigate the risks before the Tribunal and satisfy the Tribunal that he is unlikely to repeat the same or similar behaviours of concern in the future.
…
The Applicant’s submissions filed in these proceedings raise concerns in relation to the Applicant’s mental health….
…
… the extent of the Applicant’s drug use is unclear to the Respondent and the Applicant provides inconsistent submissions regarding his past drug use. …
[57]Ex 7 – para’s 60 to 72.
In terms of that last submission, the respondent’s representative referred me to the decision of the Appeal Division of this Tribunal in Chief Executive Officer, Public Safety Business Agency v Masri, in which the decision at first instance was successfully appealed on the basis of a decision reached based on inferences drawn.[58] However in my opinion I need not have considered this decision as being one on which anything turns in this proceeding. I did reach my decision by drawing any inferences from the evidence that was before me in terms of any of the issues to which the respondent referred in those submissions to which I have just referred.
[58]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86,[36]
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.[59] In my opinion, in all respects he did so. 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.
[59]These are two dictionary definitions of the word ‘insight’ – see Collins Pocket Dictionary of the English Language – Williams Collins Sons & Co Ltd – London – 1989. The applicant also offered a definitions of ‘insight’ in his written closing (ACS para 18) said to be ‘in the ordinary sense’, such being similar
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.
Conclusion
In all respects, having read the applicant’s material, listened to him in the hearing and considered his responses to that raised with him under cross-examination, as well as having observed him during the hearing, I was left with the conclusion that the applicant would be suitable as a holder of a Blue Card, such being a person who could be entrusted to ensure the welfare and best interests of a child would be protected should he find himself in a position of caring for children in an employment of business setting.
I was unable to find the applicant’s case to be an exceptional case such that it would not be in the best interests of children and young people for him to be issued with a Blue Card. In my opinion his circumstance does conform to the general rule such that a working with children clearance must issue. It therefore follows that the Decision is not an appropriate one, and that it should be set aside. There was an order to that effect.
For completeness I make this one final observation for the applicant’s benefit. It is not for this Tribunal to issue a Blue Card to him. What must now follow is that it will be for the respondent via Blue Card Services to deal with that matter.
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