GBJ v Director-General, Department of Justice and Attorney-General - [2024] QCAT 230

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

GBJ v Director-General, Department of Justice and Attorney-General [2024] QCAT 230

PARTIES:

GBJ

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML108-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

31 May 2024

HEARING DATE:

20 August 2021

HEARD AT:

Bundaberg

DECISION OF:

Member Allen

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General that GBJ’s case is “exceptional” within the meaning of the Working with Children (Risk Management and Screening) Act2000 (Qld) is confirmed.

2. Publication of the name or any identifying information of GBJ or any person associated with him other than to the parties to the proceeding is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act2009 (Qld). Accordingly, the reasons for decision will be published in a de-identified format.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY LEGISLATION – OTHER MATTERS – blue card – where applicant seeks review of a decision to issue a negative notice – where applicant has criminal history in regard to drug offences – whether it is an exceptional case in which it would not be in the best interest of children to issue a positive notice to the applicant.

Human Rights Act2019 (Qld), s 13, s 21, s 23, s 36, s 48, s 58

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 18, s 20, s 21, s 24, s 66

Working with Children (Risk Management and Screening) Act2000 (Qld), s 5, s 6, s 221, s 226, s 360

Briginshaw v Briginshaw (1938) 60 CLR 336

Chief Executive Officer Department of Child Protection v Scott[No. 2] [2008] WASCA 171
Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492
Commissioner for Children and Young People v Storrs [2011] QCATA 28
GW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
McKee v McKee [1951] AC 352
RPG v Chief Executive Officer, Public safety Business Agency [2016] QCAT 331
Re TAA [2008] QCST 11

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

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Capper, in-house representative for the Department

REASONS FOR DECISION

INTRODUCTION

GBJ made application to enable him to obtain authority to work with children, known as a blue card under the Working with Children (Risk Management and Screening) Act 2000 (‘WWC Act’). He received a negative notice and statement of reasons on 24 February 2020 which meant that he was not eligible to work with children in Queensland. He has made application to the Tribunal to review that decision.

THE LEGISLATION

The purpose of the WWC Act is to ensure that those who wish to work with children do not pose a risk of harm to the children they may come in contact with during the performance of their duties. An application is made to the Department of Justice and Attorney-General (‘the Department’) by a potential employer where the employee’s duties involve regulated employment, which is working with children, for a prescribed notice. The Department gathers information from various sources including the person’s criminal history, including charges and convictions. There are two possible outcomes to any application: a positive notice which means the person may work with children, and a negative notice which means they must not work with children. The Department issues the notice with a statement of reasons.
Applications for prescribed notices are determined in accordance with s 221 of the WWC Act where the person has no conviction or a conviction for offences other than serious offences. Where the Department is aware of relevant information as is the case here the Department must issue a negative notice if the Department is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person.[1] The decision under review is then whether GBJ’s case is an exceptional case.
[1]WWC Act, s 221(2).
The Department noted in its submissions that the term “exceptional case” is not defined in the WWC Act, and referred to the decision in Commissioner for Children and Young People and Child Guardian v FGC:[2]
What is an exceptional case is a question of fact and degree to be decided in each individual case, having regard to ‘the context of the legislation which contains them, the intent and purpose of that legislation and in the interests of the persons it is obviously deigned to protect, children’.
I note that the Tribunal in FGC further stated that “it is a term of common use in everyday language” and held that:
The proper approach to it is that, with respect, adopted by Philippides J: [in Commissioner for Children and Young People and Child Guardian v Maher and Anor[3]] to consider its application in each particular case, unhampered by any special meaning or interpretation.[4]
[2][2011] QCATA 291 at [31] (‘FGC’).
[3][2004] QCA 492 (‘Maher’).
[4]FGC at [31].
Where a person has been charged with or convicted of an offence, the Tribunal must have regard to the considerations prescribed in s 226 of the WWC Act in determining whether an exceptional case exists. Section 226 is not an exhaustive list of considerations and does “not expressly or impliedly confine the Tribunal to considering only the matters specified therein”, rather they “merely certain particular matters which the [Tribunal] is obliged to consider in deciding the application.”[5]
[5]Commissioner of Children and Young People and Child Guardian v Storrs [2011] QCATA 28.
The Tribunal when reviewing a blue card decision stands in the shoes of the decision maker and must make the correct and preferable decision[6] based on a fresh hearing on the merits.[7] The Tribunal has all of the powers of the original decision maker and must make its decision in accordance with the legislation under which the original decision was made, the WWC Act and the QCAT Act.[8] The decision maker must assist the Tribunal to make its decision by providing a written statement of reasons with all of the material considered relevant to the Tribunal’s review of the decision.[9] The Tribunal may determine the application by confirming or amending the original decision; setting aside the original decision and substituting its own decision; setting aside the original decisions or returning them to the decision maker with or without directions for reconsideration.[10] There is no onus of proof which must be discharged by either party in regard to the application[11] and the Tribunal must make its decision based on the balance of probabilities in accordance with the decision in Briginshaw v Briginshaw.[12]
[6]Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20(1) (‘QCAT Act’).
[7]Ibid, s 20(2).
[8]Ibid, s 19(a).
[9]Ibid, s 21.
[10]Ibid, s 24.
[11]Commissioner for Young People and Children v Storrs [2011] QCATA 28.
[12](1938) 60 CLR 336 at 361-362.
The WWC Act is to be administered under the following principles - the welfare and best interests of a child are paramount and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[13] When exercising its powers under the WWC Act the Tribunal must act under the principle that the welfare and best interests of a child are paramount.[14]
[13]WWC Act, s 6.
[14]Ibid, s 360.
The Department submits, as relevant, the Oxford dictionary definition of paramount to mean “more than anything else; having supreme power”. That in Maher,[15] McPherson, JA acknowledged the importance of the paramount principle stating that; “expressions in that form have long been a feature of the law governing the affairs of children.” Referring to that principle in McKee v McKee [1951] AC 352, 365, Viscount Simonds said that it was the paramount consideration “to which all others yield”. Further that the paramount principle ought to inform the standard of proof required in decisions under the WWC Act and that in Maher, as Phillipides J noted, it was accepted that “the Tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of consequences involved that there was an exceptional case.”[16] Given the paramount principle and the nature of decisions under the WWC Act, the “gravity of consequences involved” should be taken to mean the gravity of the consequences for children if a blue card were to issue. Any consequences, in terms of prejudice or hardship to GBJ, are not relevant in child-related employment decisions.[17] However, the potential consequences for children of issuing a blue card are significant. This approach is also said to be consistent with the approach of the Appeals Tribunal in Masri.[18]
[15]Maher, at [3]
[16]Ibid, at [30].
[17]Chief Executive Officer Department of Child Protection v Scott [No2] [2008] WASCA 171, Buss J at 109.
[18]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86.
Having regard to the requirements of s 360 of the WWC Act and the precedent submitted I am satisfied that this is not to be a balancing of the interests of children against those of GBJ but a consideration as to whether the requirements of s 221 are met and there is an exceptional case in which it would not be in the best interests of children for him to be issued with a blue card.
The Department noted that the decision in Maher is often cited for the proposition that the Tribunal is required to balance risk factors against protective factors in determining whether an exceptional case exists. The Department submitted in accordance with the decisions in Eales,[19] which considered the decision in Maher, that:
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors to find whether an exceptional case exists…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...[20]
[19]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 (‘Eales’).
[20]Ibid, at [6]-[7].
The Department further submitted that adopting a “balancing” approach risks the Tribunal being led into error, as the concept of “balancing” implies a weighing up of two countervailing sets of factors. It connotes an equal distribution of weight between factors for, and against, GBJ’s case. The Department submitted that when considering the factors, the Tribunal should take a qualitative rather than a quantitative approach, and applying equal weight to both sets of factors creates a risk that the Tribunal will be led into error by failing to apply the paramount principle.
In exercising its review jurisdiction, the Tribunal is acting as a public entity for the purposes of the Human Rights Act2019 (Qld) (‘HR Act’) and therefore the HR Act applies to the Tribunal. The Tribunal is required to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights, or if it is not possible to interpret them in a way that is most compatible with human rights, in accordance with s 48 of the HR Act. Under s 58 of the HR Act, it is unlawful for a public entity to act or make decisions in a way that is not compatible with human rights, or in making a decision, to fail to give proper consideration to a human right. This requires that the Tribunal identify the human rights that may be affected by the decision and consider whether the decision would be compatible with human rights. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom in accordance with s 13(1) of the HR Act. In deciding whether a limit on a human right is reasonable and justifiable the factors set out in s 13(2) of the HR Act may be relevant. The relevant human rights[21] here include GBJ’s right to a fair hearing, privacy and reputation. The right of every child to “the protection that is needed by the child, and in the child’s best interest, because of being a child” is relevant in respect of children generally.
[21]HR Act, ss 15-37.
Clearly it is not simply a numerical exercise once factors are identified as being either risk or protective factors in regard to children; the extent to which they embody those factors must be considered so that the overall decision is based on whether or not all of the factors when taken together satisfy the Tribunal that there is an exceptional risk to children. I therefore accept the Department’s submissions in regard to risk and protective factors.

The Paramount Principle

GBJ in his material stated that not having a blue card means he will not be able to work for the support service. The Department submitted that such considerations are not relevant in determining whether his case is an exceptional case. Given the paramount principle, such considerations must “yield” to the consideration of whether GBJ having a blue card is consistent with the welfare and best interests of children. This is a protective jurisdiction. Any hardship or prejudice suffered by GBJ as a result of not obtaining a blue card is of no relevance. Similarly, any benefit to children from having access to GBJ’s skills is not relevant if it is not in the best interests of children for him to be issued with a blue card. Having regard to the discussion of the paramount principle above I accept the submissions of the Department and so I will not take into account the impact on GBJ of him not obtaining a blue card nor the potential benefits to children of him obtaining one if it is not in the best interests of children in my considerations under the WWC Act.
Consideration of s 226 of the WWC Act
To determine if there is an exceptional case the Tribunal must have regard to the requirements of s 226 of the WWC Act. This requires a consideration of the details regarding the offences which GBJ has been charged with or convicted of over the years. These will be dealt with in accordance with the criteria set out in s 226(2)(a):
Whether it is a conviction or charge
(a)GBJ has convictions for obstructing a police officer in 2007, in 2011 careless driving/due care and attention; possessing dangerous drugs in 2016 and 2018; and possessing utensils or pipes that have been used in 2016 and 2018. At the time of the original decision, he was subject to charges for possessing drugs, possessing utensils or pipes and possessing property suspect of having been used in connection with a drug offence in 2019. The last matter was finalised on 15 February 2019 by way of conviction not recorded in regard to all charges.
Whether the offence is a serious offence and, if it is, whether is a disqualifying offences
(b)None of the offences of which GBJ has been convicted are serious or disqualifying offences.
When the offence was committed or alleged to have been committed
(c)GBJ was born in 1988. His first offence was committed in 2007 at the age of 19 years. The driving offence was committed when he was 23 years old. His first offences in relation to drugs were committed in 2016 when he was 28 years old. He had further drug offences when he was 30 years old in 2018 and then again in 2019 when he was 31 years old. The Department submitted that the recency and repetitive nature of GBJ’s offending supports a finding that the case is an exceptional case in which it would not be in the best interests of children for him to be issued with a blue card.
The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children
(d)The Department provided details in regard to the offences committed by GBJ as follows:
(i)      2007 offences
On 10 December 2007 GBJ was convicted of obstructing a police officer for his conduct on 6 October 2007. GBJ stated at the hearing that his girlfriend was being attacked at the time and a weight hit his back and he threw his arms back, but it was the police.
(ii)      2011 offences
He was convicted of a driving offence of careless driving/due care and attention on 22 July 2011 for his conduct on 1 April 2011.
(iii)     2016 offences
On 19 August 2016 GBJ was convicted of possessing dangerous drugs and possessing utensils or pipes etc that had been used. On 26 July 2016 police had executed a search warrant on GBJ’s residence. GBJ and 6 other people were present. GBJ showed police a jar containing 356 grams of cannabis. He stated it was hydroponic cannabis, it belonged to him, and he used it to help him sleep and focus. GBJ stated he bought the cannabis in bulk to keep costs down, he stated he bought the cannabis approximately five or six days ago and that it would take him five to six months to consume. GBJ showed police a large glass water pipe containing dirty water. He declared it was his, he used it to smoke cannabis and used it regularly.
(iv)     2018 offences
On 9 July 2018 GBJ was convicted of possessing dangerous drugs and possessing utensils or pipes etc that had been used. On 21 June 2018 police had attended GBJ’s residence in relation to another matter and detected a strong smell of burning cannabis coming from the address. Police detained GBJ and the other occupants of the address, and asked if they wished to declare anything. GBJ produced a glass waterpipe and small bowl containing 3.2 grams of cannabis. GBJ stated he had used the cannabis and that he did so to help him relax and deal with pain following an accident requiring facial reconstruction. Police identified GBJ had previously been drug diverted.
(v)      2019 offences
On 15 February 2019 GBJ was convicted of possessing dangerous drugs, possessing utensils or pipes etc for use and possessing property suspected of having been used in connection with the commission of a drug offence. On 23 January 2019 police had executed a search warrant at GBJ’s address. GBJ was asked if there was anything he wished to declare. He said there was a glass bong in the kitchen sink. A search of the dwelling took place and police located a large glass jar containing 292 grams of cannabis, an electric grinder containing 4 grams of cannabis mixed with tobacco, a used bong, a bowl containing cannabis residue, and a pair of blue handled scissors that GBJ admitted he had used to “chop” up cannabis. cannabis pipe and scissors. GBJ made full admissions in relation to the property stating that he was the owner.
(e)The Department also submitted GBJ’s traffic history between the years of 2005 and 2019 which listed a total of 28 infringements, mostly which related to excess speed. The Department observed that the traffic history reflects that on multiple occasions GBJ has been subjected to late night driving restrictions, good behaviour periods and demerit point suspensions.
Relevance of offending to working with children
(f)The Department submitted that to dismiss the relevance of GBJ’s offending on the basis that it is not child related, or that children were not present at the time, ignores the protective purpose of the legislation and diminishes parliament’s intention that all offences may be relevant in making a decision under the WWC Act.
(g)The Department submitted that GBJ’s criminal history reflects a recent, continued engagement with cannabis use, which was not deterred despite his interaction with drug diversion and the courts. That cannabis is associated with maladaptive behaviours and psychological change, such as euphoria, anxiety, panic and impaired motor coordination, attention and memory, all of which have the capacity to place children under the care of a cannabis user at risk of neglect of their immediate physical and emotional needs. The material, including GBJ’s oral evidence, is that he was using cannabis to self-medicate various medical issues, which raises concerns regarding his ability to judge appropriate behaviour and present as a positive role model. Children rely upon adults to be positive role models, and it has been stated by the Tribunal, that “It can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.”[22] The Department further submitted that 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 which may impair their ability to promote and protect the best interests of children. Continued drug related offending by GBJ would be likely to detract from his ability to provide a protective environment for children in his care.
[22]GW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [67].
(h)GBJ submitted that it was not his intention to work with children, but it was a requirement of the support service that he obtain a blue card before they would employ him and his intention was to work with adults.

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 a disqualification order under s 367, the Court’s reasons for the decision

(i)The penalty imposed in relation to the 2007 offence was: no conviction was recorded, recognisance of $250 and to be of good behaviour for six months.
(j)The penalty imposed in relation to the 2016 offences of possessing dangerous drugs and utensils or pipes and possessing property that had been used was: on all charges conviction was recorded, and fined $1,200.
(k)The penalty imposed in relation to the 2018 offence of possessing dangerous drugs and possessing utensils or pipes etc that had been used was: on all charges no conviction was recorded, fined $500.
(l)The penalty imposed in relation to the offences committed in 2019 of possession of dangerous drugs, possession of utensils or pipes for use, possession of property suspected of having been used in connection with the commission of a drug offence was: no conviction recorded on all charges and a fine of $1,800.
(m)The Department was not able to supply the transcript of the magistrate’s sentencing remarks in relation to the offences but did note that in respect of the 2016 offences the magistrate’s decision to record a conviction in addition to imposing a substantial fine reflects the seriousness with which the Court viewed GBJ’s offending.

Any information about GBJ provided under sections 318, 319, 335, 337 or 338 of the WWC Act

(n)No information was requested or received pursuant to these sections of the WWC given that they were not relevant or applicable to this matter.

Anything else relating to the commission, or alleged commission of the offences that is reasonably considered to be relevant

(o)The Department submitted GBJ’s traffic history as mentioned above which showed extensive speeding and other offences between 2005 and 2019 with disqualifications at various times. There were 24 speeding offences. Submissions in this regard are considered in the risk and protective factors above.

Risk and Protective factors

In terms of his childhood in his life story GBJ described that he had some issues with communication and was home schooled until year 3. He slowly improved but in grade 8 he went to an educational psychologist who said his reading skill was advanced for his age, but his spelling was terrible. That he had a very active brain and needed to learn skills to slow his thoughts down. He had issues with immaturity in high school and used humour to cover up his insecurities or inabilities. He figured he was destined to be a labourer and not a professional. He commenced a part time apprenticeship as a brick layer in year 12. He completed his apprenticeship with various bosses and had stomach issues as a result of bullying from one boss. A bacterial infection contracted on one work site left him with a sensitive stomach. That being a brick layer is hard on the body and he had two knee operations and some slipped discs in his lower back and what may be arthritis in his hands, due to heavy weights and consistent gripping of bricks. He spent a few years either working at a box factory, unemployed or odd jobs.
GBJ described himself as a fairly typical middle socioeconomic male, not perfect but generally not a bad member of society. He willingly helps out people if they need assistance from helping people move, giving a person a ride and his kindness has sometimes caused him serious outcomes. He recently helped someone in financial need and will not get the money back. He took in an old school mate who was homeless and going through mental illness and separation from his children. He eventually learnt substance abuse, of both alcohol and drugs, was a major problem.
In GBJ’s life story, he showed general insight in being aware that his decisions had not always been good but that he also knows that he has made good changes in his life which have resulted in positive outcomes. That the biggest and most life changing was to become a carer. This made him more aware of his life choices and that changing the negative behaviour has resulted in a much better version of himself, a person who has become a positive and responsible member of the community. He says his past is part of him, it taught him what he does not want and his work with the local disability community has given him purpose, direction and a rewarding career that he is passionate about. He submits that people make mistakes and what is important is that we learn from them and not repeat them and move forward better people.
Mr D, a work colleague, provided a reference for GBJ and stated that GBJ has demonstrated how far he has come through his work ethic and dedication to his job. Mr D described GBJ as a very honest, caring and hardworking man who deserves a second chance from his past. Mr K, another work colleague of GBJ, in his reference stated that GBJ was a happy, fun person always willing to help and be there to talk if needed. That through his work he saw the kind and caring man he is towards customers including those with behaviours. That GBJ had told him about his past and that he expressed he knew it may play a part in his new role but made it clear it was in the past and not his path anymore. Mr K stated that GBJ had been trained to administer medication and that this was only done by staff who are professional and responsible. Mr K described GBJ as an outstanding support worker. Mr J, another work colleague of GBJ, in his reference said that at the start of his employment GBJ was quite ashamed about his previous convictions and made it quite clear that he saw his new job as an opportunity to become a better person and put his past behind him. He noted that he had even used his past experience to convince a client not to use drugs. That his role of administering psychotropic medication required quite a high level of trust and responsibility. That over the last 14 months GBJ has come a long way and developed into a different person now to the one who was caught with marijuana. That he and the families who GBJ supported wanted him to get his blue card. He described him as a reliable, compassionate, responsible support worker. Mr S knew GBJ through employment as part of a course placement and then as a support worker. He found GBJ to be a reliable and diligent support worker who was respected by his peers.
Ms N, the human resources manager for the support service, confirmed that GBJ had been employed from 6 December 2018 to 28 February 2020 and that his employment was terminated when he received the negative notice. That he had been open and honest with his disclosable history and that her reference was provided with a sincere belief that this is highly contrary to his work ethic and disposition in life. She described him as a reliable and hardworking team member. She stated that GBJ’s disclosable history was discussed with him, and he was very resentful with himself and decisions he had made in the past. That he pledged he was a changed man who not only wanted to make a difference in his own life but in others’.
Mr/Ms L, who was GBJ’s teacher in the disability support course, stated that he was a very compliant student, and that he assisted other students with practical help if they asked him to. He was attentive during class and on field trips. He was very reliable and never missed a day of class. Mr A knew GBJ through his disability support course training. He described GBJ as a very proactive person with contagious enthusiasm, who volunteered many times to help classmates. He stated that GBJ had been acting guardian for his nephew who always looked well-fed and like an average teenage boy. He believed that GBJ appeared to be a very trustworthy person.
Mr and Mrs T, who were the parents of a person GBJ cared for, stated in their reference that he was an energetic, quiet and reliable carer and that he had worked very hard supporting their son. That he was an honest person who could be trusted with money. Ms G, another parent of a person cared for by GBJ, described him as a very polite person who was willing to listen to information to learn about her son’s history. She was impressed by GBJ’s enthusiasm and his ability to make her son laugh out loud and that he treated him with respect and dignity. She said she was well aware of his previous history of use of cannabis and his subsequent time spent paying for his mistake. She felt he had done his time, learnt from his mistakes, and should be given every opportunity to work in his chosen career.
GBJ had references from family friends who described him as a kind, thoughtful and loyal person, who had shown improvement in maturity and responsibilities, while observing him in his home environment. According to Ms M, she had children and she thought he would be very capable and trustworthy with their care. Ms MP had known him for 16 years as a family friend, she said he had had his ups and downs in life, but he was getting back on track. That he was very passionate about his work and loves children. She said he was “amazing” around her three children. Ms GI, who had known him for 15 years, said that without a doubt he is a person with very good morals, that he shows integrity and is a hard worker and dedicated to his job. Ms LB, who has two young children, described GBJ as trustworthy and reliable. He has continued to grow and become a great disability worker. She said he was great around children and continues to babysit for her when needed. Ms JB thought very highly of GBJ and said he was a respectful, caring and thoughtful young man and that he was a very loyal, reliable person. She has a son with autism and down syndrome who is very wary of people and who loves GBJ. Reverend F has known GBJ and his family for more than 12 years. He had come to know GBJ when he had come over to the Solomon Islands and did some volunteer work. He found him to be a very hard-working young man who loved life and fitted in with the Island community, especially among the children and youth. He described him as a trustworthy young man who can work on his own without supervision. Rev. F knew that over the years GBJ had made some wrong choices in life, like many others, but now has grown mature and moved onto better and higher callings in life. The recent opportunity which enabled him to study a disability care course and found him work helping those who cannot help themselves has given him a sense of firm direction and satisfaction. Ms R knew GBJ for 5 years. She described him as a great person who helped her and her son when they were homeless. That he always presented well and has bright attitude and is always willing to help others and is great with kids. Ms A, who had known GBJ for 5 five years, said he was a very kind and giving person and was always the first person to put his hand up when someone needed help. That he is fantastic with kids and when he visits, he often spends most of his time reading to her 2-year-old. Mr W had known GBJ for 15 years through work and as a friend; he states he had always been a kind, caring person, who always pushes himself to be better and always helps others. He had worked with him as a team and watched as he pushed himself as an individual worker to gain the position of site foreman. He would always recommend GBJ for any position knowing he is a capable, kind and caring person. He said GBJ is also great with kids and is amazing with his 2-year-old daughter bringing the best out in her. Mr McC had met GBJ through his mother at a time when he needed support. He said GBJ treated him and others with utmost respect and noted how he has an unbiased view of any situation, age, size, sexual orientation and ethnicity. That when someone was in need GBJ was there to help, no questions asked. Mr McC said he was fully aware that GBJ, like most, has made a few mistakes, but having known him for 3 years, as at 20 February 2019, he has witnessed GBJ change extraordinarily for the better, especially after obtaining work as a disability support worker. He believes that GBJ is in his element in this role, being the kind-hearted helpful person he is.
In regard to his drug offences GBJ stated in his life story that in 2016 the house he rented and shared with an old friend was visited by the police and drugs were found. At the hearing GBJ stated he was using cannabis in 2016 to help him sleep and focus. He stated that people thought he had ADHD and when he used it he could focus better, that the 356 grams of cannabis would have lasted him 6-7 months as he was smoking 2 grams a day and that was the first time he had bought that much. He acknowledged that he had used cannabis when he was younger and had stopped for a number of years. GBJ stated that he had first engaged in cannabis use when he was 16 or 17 years of age, as it was believed he had ADHD. He said he had done a drug diversion when he was a teenager and had experimented with different drugs. In regard to the drug diversion the Department noted that GBJ said at the hearing that it had taught him cannabis was fine “as long as it is done in a healthy and safe way” such as avoiding “using water bongs”.
He stated in his life story that in 2018 he was assaulted while helping a friend move his car from his house to get repaired. While trying to get it on the trailer the pair were accosted by some men who had been squatting in the next property. His left cheek bone was broken, affecting his jaw. The doctors were only able to partially fix it and it has left him with constant pain. He is still waiting on a second operation to help with a collapsed nasal passage that resulted from the attack and the initial operation. It was this assault, he says, that caused him to use marijuana rather than pain killers that either aggravated his stomach or made him feel like a “complete zombie” and unable to function coherently. This drug use then resulted in the court issuing him with a fine. The court’s decision was not as bad as it could have been but it was a wakeup call. He stated that he also had just about finished his course as a disability carer, and he had already been offered a job for when he had completed his course. He applied for the blue card as part of the course.
In his oral evidence GBJ said his roommate was using cannabis and they owned half each. He said 2018 was a wakeup call but he relapsed in 2019 due to a collapsed cheekbone. He had been prescribed a different manmade chemical and used them for 6 months. He said he felt like an “airhead” and when he spoke to the doctor about the way the medicines made him feel and that is why he stopped taking drugs. Mr D, in his reference for GBJ, confirmed his love of his job and that getting into trouble had been a major wakeup call for him, and stated that he made the decision to stop using that day and has moved forward.
In regard to the 2019 conviction itself GBJ said in oral evidence that someone had wanted some of his marijuana, he wouldn’t give it to them and they had dobbed him in. At the time of the 2019 offence he confirmed he had 292 grams of cannabis as he had purchased in bulk. He said he was smoking 3 grams a day due to extra pain. He said he was using it on weekends and before he slept. He said he would use it when he had more than 13 hours of free time. He said he tolerated pain when he was at work. He said it was proven that after 4 hours it starts to leave your system and after 10 hours there is no inebriation. GBJ confirmed that he had been working for a service provider from the end of 2018. During this time he was using on weekends and when he had 13 hours between shifts. He said that if called out on short notice as mentioned by some of his referees below he would only go out when he had taken cannabis 13 hours before the shift.
Mr D, in his reference for GBJ, stated that GBJ had been called in to cover shifts at 2:00am in the morning and never once had he ever hesitated in coming to work. Mr D noted that GBJ has never forgotten medication, never been reprimanded for any wrongdoing and never been suspicious about anything. In his oral evidence at the hearing Mr D stated that he understood the purpose of his reference was to clarify his understanding of GBJ’s history of drug offences involving cannabis. He noted he had not read the Department’s reasons document. That this offending was prior to him meeting GBJ and as long as he had known him since December 2018 GBJ was not using cannabis and had not used it for 6 to 12 months prior to starting at the support service. He said GBJ was a great worker and never under the influence of drugs in the time he knew him.
Mr K stated in his reference that GBJ was very willing to pick up shifts at any time of day as a casual employee should. He noted that GBJ was always well dressed and followed the policies and procedures in the workplace. In his oral evidence Mr K confirmed that he had not read the reasons document provided by the Department and that he knew GBJ was issued a negative notice due to possession of illegal drugs. He said it did not happen when working with him, but in the past. That while he was aware GBJ was charged on 12 January 2019 he was not using it he just had it. That he had never come to work affected by drugs because he had a pretty bad past and was trying to move on from it. He said GBJ could come in at 12:00am for an 8-hour shift and that would be hard if he was taking anything. That the on-call nature of the job meant he was called up at random and asked to come in. That there was not a roster and he could be called and be expected to come within an hour. Mr K clarified that if GBJ had done a long shift he would have an 8–10-hour gap and that he was never once under the effect of drugs. Mr J, in his oral evidence, stated that GBJ had spoken about why he got the negative notice and that it was a possible indiscretion from a number of years ago, a large amount of cannabis, and he bought it to support a painful eye socket injury. He said it happened before he started employment and that GBJ was ashamed of his conduct and saw his new career as an opportunity to put it behind him.
Ms N, in her reference, stated that GBJ had been engaged in casual work and on multiple occasions was relied upon in desperate times to fill shifts in the 14 months he was employed. In her oral evidence at the hearing Ms N stated that GBJ worked morning, afternoon and night shifts and he would be given notice of shifts two weeks before with a roster. While Ms N had not seen the reasons document she knew that that it was in regard to marijuana and that it had occurred quite a while back and he was hanging around a not-good crowd. She had seen his disclosable history and knew that there were some traffic offences as well.
In her oral evidence at the hearing Ms G said she was aware of the negative notice and reasons document but had not seen it. She said that she knew it was issued due to prior misdemeanours to do with drug use and pain relief from surgery, and that he was using it due to conditions he suffered. She said he was upfront with her as he was her son’s carer and that he said he was no longer using it. She couldn’t recall if he said the last time he used it. Ms G stated in regard to the hours of support provided by GBJ that he was pretty flexible if someone was sick and he was available.
GBJ confirmed that after the 2019 offence he did not continue to use cannabis and referred to the drug screen results mentioned below. He confirmed that he had not told the support service about his current use of cannabis. When asked about driving to shifts while affected by cannabis GBJ said he had been subjected to drug testing three times and was never positive. In his life story GBJ said he had not used cannabis in a year as at May 2020.

Having regard to GBJ’s life story as compared to his oral evidence and police material the Department submits that GBJ’s use of cannabis was far more extensive than what is reflected in his criminal history, and in light of its recency significant concerns are raised with respect to his ability to abstain from further cannabis use. That despite referring to the 2018 offences as a wakeup call in his life story GBJ conceded in his oral evidence that he relapsed into using cannabis, resulting in the 2019 offences within months, due to pain associated with facial surgery.
GBJ, in his life story, stated that he has also found ways to deal with the triggers which have caused him to use cannabis and in oral evidence he stated that the triggers in 2016 were focussing and ADHD and in 2018 and 2019 they were pain. He said he now manages those triggers through yoga, meditation and talking to people. He had to find better ways to deal with the pain in his jaw so he took up meditation which helped a bit and also learning more about substance abuse and the importance of using medication exactly as prescribed, per his clients, made a difference to his way of thinking. At the hearing he said he also uses yoga and meditation to help him focus so that he does not think about the pain as much. He said he has constant pain and when it is heavy he uses breathing exercises and that he will be having further surgery on his cheek and nose. and talking to people to assist him.
When asked if he would be tempted to use cannabis again GBJ stated he would not use anything illegal to deal with his pain. That he had his job, and his career. Having regard to the letters from the counsellor below GBJ confirmed that it was May 2020 when he had last used cannabis. When asked if that was enough time to ensure he would not use cannabis again GBJ stated he had not used it for over a year as at the time of the hearing and that he was sure he would not relapse. That counsellors had taught him to speak to people and exercise. When asked if his views on cannabis had changed, he said when he was a teenager he was young and reckless and now he wants to change his life to do more goal-oriented career things. He was asked if he had sought advice about medicinal cannabis and said his doctor was against it but another doctor had prescribed CBD oil to deal with his pain, which was not psychoactive. He confirmed that he had injuries to his knees and slipped discs from being a bricklayer which required pain relief and that he was handling pain better. GBJ noted that he had used drugs for pain relief and was not aggressive and that when he took in his friend, who was homeless, he saw the effects of substance abuse.
GBJ supplied drug test results dated 23 October 2020 which showed he had nil drugs in his system. He had a report from Mr R, a counsellor who performed a counselling evaluation around his previous use of cannabis. Discussions around the reason of his cannabis use were held and it was stated that ceasing its use did not cause any issue or complications for him. Mr R stated he appeared to be an insightful, motivated, caring, compassionate man, who is very dedicated to his work. Mr R had no hesitation on recommending him as a moral citizen of the community, able to hold to professional standards in his work. Mr R gave oral evidence at the hearing. He said he last saw GBJ on 8 August 2020. That he saw him through an EAP agreement with his place of work for 3 sessions. He thought GBJ had failed a THC screen. Mr R remembered GBJ stated he knew cannabis use was not okay and it had impacted his work, and he was passionate about his work. He could not recall discussing reasons why he was using cannabis or the frequency of his drug use. Mr R recalled that GBJ was dedicated to kids and had a commitment to stop using as it was impacting his work. He recalled that the blue card was declined because GBJ used cannabis after face surgery. Mr P, a senior alcohol and drug clinician, performed an assessment of GBJ on 3 September 2020. He was assessed for cannabis use and his level of dependency. The results indicated that although in the last 12 months he had developed probable drug problems (with a score of 3 out of 5) there were no substantial problems affecting his day-to-day functioning and no dependency issues present. He also self-reported that he had ceased using cannabis for approximately the last four and half months. From Mr P’s assessment of this client, he could not determine whether he would use or not use cannabis in the future, and he stated only a medical drug test could substantiate this. Moreover, in his experience in working with clients who used illicit substances, there is no evidence that indicates that past using behaviour is an indication of future using behaviour. There are many instances of clients self-correcting their behaviours and functioning in their full capacity without the use of any illicit substances. He also commended GBJ for making the changes he has despite his physical injury difficulties to obtain gainful employment in a field he is passionate about.
The Department submitted that GBJ had stated in his life story that he had not used any form of illegal substance in over a year suggesting that he had not used cannabis since May 2019. Though the letter filed from Mr P dated 20 September 2020 indicated he had ceased using cannabis for approximately 4 and a half months. That in his oral evidence GBJ couldn’t recall exactly when he last used cannabis, but that after he was terminated from his employment he thought “stuff it” and used again, which he estimated would have been around March or April 2020 which the Department submitted was consistent with Mr P’s report. That GBJ had conceded in oral evidence that his statement in his life story, that he had not used cannabis in more than a year was untruthful. The Department submitted that the 2019 offending was of particular concern, as it occurred while GBJ was in child-related employment while his blue card application was being assessed. The Department noted GBJ’s evidence that he would only use cannabis if he had 13 hours between shifts and that it had been proven by “doctors and scientists” that after 4 hours cannabis leaves your body and there are no signs of inebriation. The Department referred to the decision in TWE[23] where the member stated in relation to TWE’s cannabis use while engaging in child-related employment:
Though [TWE] may have felt fully capable, this may not be an accurate assessment by her of her own capacity. Cumulative and continuing drug offending by [TWE] would likely detract from her ability to provide a protective environment for children in her care notwithstanding she felt capable.[24]
The member in TWE further considered TWE “show[ed] a deep lack of understanding and insight in failing to appreciate how her own drug use might adversely impact her capacity to have children in her physical care following the use of drugs the previous evening.”[25]
[23]TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121.
[24]Ibid, at [126].
[25]Ibid, at [125].
The Department submitted that GBJ’s reliance on his own assessment of whether he was under the influence of cannabis is deeply flawed and indicative of a lack of insight into how his cannabis use may have affected the children and young people he cared for during his employment. The Department noted GBJ had been questioned at the hearing about whether it was always possible to ensure that 13 hours had elapsed between his cannabis use and engaging in child-related employment, having regard to the material from his colleagues at the support service that he would be asked to cover shifts, citing Mr D’s evidence and the oral evidence of Mr K. GBJ stated he had a set roster and so this only occurred on one occasion and Mr K stated that GBJ was asked to come in on late notice regularly and whenever he was contacted he would come in “at the drop of a hat” and be willing to work. The Department submitted that while GBJ’s own assessment of his capacity to work 13 hours after smoking cannabis is flawed, it is also likely he was regularly working in child-related employment less than 13 hours after smoking cannabis and on his own assessment and understanding was affected by it.
The Department also noted that of the colleagues and supervisors of GBJ who provided witness statements who were available for cross-examination at the hearing none of them could attest to having read the Department’s reasons document and during cross-examination, each witness, despite attesting to having knowledge of GBJ’s past in their statements, described varying accounts of their understanding of why GBJ was issued with a negative notice. The Department noted a central theme in all of the witnesses’ evidence was that their understanding of GBJ’s drug use was that it was “in the past” and not while he was working with them, which contradicts his own evidence and suggests he was not transparent with his witnesses. Accordingly, while the Department acknowledged the positives from the witnesses with respect to GBJ’s work, it submits in light of their lack of knowledge and understanding of GBJ’s drug use the weight that can be afforded to the witnesses’ evidence is minimal.
The Department notes GBJ’s reference to the offences in 2019 as being the “major wakeup call” at which point he acknowledged the negative impact of cannabis on his life and ceased using. However, The Department submitted this in the context of GBJ having previously been convicted of drug offences in 2016 and 2018 and him referring to the 2018 offence as a wakeup call. The Department submitted that GBJ’s continued engagement in drug offending, despite repeated intervention by the courts by way of fines and drug diversion, demonstrates a disregard for the law and an unwillingness to change his behaviour, and further suggests he poses a risk of recidivism. The Department notes that GBJ’s material suggests his motivation to be employed as a disability carer is a protective factor with respect to his ability to abstain from future cannabis use. However, the Department notes, he was employed in this position at the time of his most recent drug offending in 2019, and in his oral evidence, he stated he continued to use cannabis throughout 2019. The Department submitted the weight that can be afforded to this protective factor is low.
GBJ in his submissions stated that in his past he had definitely made some “stupid mistakes”. When he was first charged with having cannabis he took the direction from the police and admitted his error and accepted the punishment, that he was naïve, he knew nothing of legal proceedings and other options available nor did he fully understand the consequences of using it both medically and legally. Had he been informed of his obligations etc he may have received a different outcome and the charge may not have resulted in a conviction. He states: “that’s the past, it happened”. I note that whether or not a conviction was recorded, the charge and outcome would have been part of the material before the Department, and now the Tribunal, as the WWC Act includes charges and all convictions, whether they are recorded or not. Recording simply means a charge does not have to be disclosed on his criminal history to potential employers. He says that in 2019 he pleaded not guilty but was aware of why he used cannabis this time. The court accepted that he was using the cannabis to assist with his medical condition which is not illegal but that he obtained it illegally. He received a fine but no conviction. I note that while a court may take into account the reason for use of cannabis when considering its sentence, it is the possession of cannabis as an illegal substance which is the offence.
GBJ submitted that the responses from those cross-examined at the hearing clearly stated that they had never had concerns for his clients’ wellbeing whilst in his care, that he had never had a bad report and that his clients and their parents and or guardians were pleased with his care and interaction with his clients.
The Department noted that the reasons GBJ had used cannabis were explored at the hearing as discussed above. While GBJ states he no longer uses cannabis to manage his health issues, the Department holds concerns in the absence of any probative evidence as to how GBJ manages his pain, which still varies in severity, or how he deals with his other health issues without resorting to cannabis, specifically with respect to pain management. The Department holds concerns that strategies such as meditation and yoga are insufficient to deal with pain on a long-term basis. The Department notes that while GBJ provided the report from Mr P he was unavailable for cross-examination. The Department notes in regard to the report from Mr R, which is undated, that it stated that GBJ sought “counselling evaluation around his previous use of cannabis”. However, it is unclear when such counselling was sought, whether this is ongoing or what strategies or steps this enabled GBJ to develop. While Mr R was available for cross-examination the Department notes that he was unable to provide any further detail in relation to his letter and was concerned he might mix up his understanding of GBJ’s situation with another patient.
GBJ submitted that although he uses cannabis for his medical condition, he does so under the care of his approved GP, and he is prescribed medical cannabis which is a legal prescription, and he attached a letter from the GP. This was not raised at the hearing and at most GBJ indicated he was prescribed CBD oil which was not psychoactive. It was made clear to GBJ at the hearing that submissions were not a time to raise fresh evidence as this would be in particular without the Department having the opportunity to cross-examine the doctor and make its own submissions in regard to their evidence. He again stated that any side effects from the prescriptions containing THC are noted to be void after 4 hours as it starts to leave the system, and after 10 hours, his GP informs him, there are no effects from approved pharmaceuticals. This would tend to indicate that the same issues would apply in regard to GBJ’s working while still under the influence of cannabis, whether it is illegal or medically prescribed. GBJ submitted that the past does not define him and that medically prescribed and supported cannabis is not illegal.
GBJ submitted that the Department did not understand why he used cannabis and the science behind it and made comparisons to the severe side effects from non-approved pharmaceuticals. That the interrogation of himself and his referees that the Department insisted upon generally attempted to conclude that his past defined him and that cannabis was illegal. The Department expressed that he would be unsafe with children. He stated that as an uncle he often has interaction with his nephews and nieces and babysits when requested, and at no time has he or anyone else had a concern for their safety. That although the referees were aware of his past including his use of cannabis they still felt he was more than capable of carrying out his duties without any concern for the physical, emotional and mental wellbeing of his clients.
The Department submitted that GBJ’s material, and his oral evidence, does not demonstrate that he possesses adequate insight into the seriousness of his offending, other than the impact it had on his ability to work in his desired employment. The importance of an applicant possessing genuine insight as a protective factor was noted by the former Children’s Services Tribunal in Re TAA[26] The Tribunal observed that:[27]
The issue of insight into the harm caused in 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 on others 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 upon the adults who around them having insight into their actions and the likely effect on children.
Given the lack of the evidence GBJ possesses insight, the risk factors and triggers that continue to be present and lack of protective factors or preventative strategies, the Department submitted that GBJ poses a high risk of recidivism.
[26][2008] QCST 11.
[27]Ibid, [97].
The Department submitted in regard to transferability that the effect of issuing GBJ a blue card is that he is able to work in any child-related employment or conduct any child-related business, supervised or unsupervised, regulated by the WWC Act, not just for the purpose for which he has sought the card. If issued with a blue card GBJ could work with children of any age, gender or vulnerability. That the Tribunal does not have power to issue a conditional blue card[28] and once issued, a blue card is unconditional and fully transferrable across all areas of regulated employment and business.
[28]RPG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 331, [27].
GBJ submitted that he had never worked with children nor does he intend to work with children in the disability care environment. He submitted that he only required the blue card due to the disability agency’s requirements that all employees hold a blue card regardless of whether or not their employees work with children.
The Department acknowledged that there were a number of competing human rights relevant to the decision before the Tribunal. These could include GBJ’s right to privacy and reputation in s 21 of the HR Act and the rights of children, specifically the right of every child to “the protection that is needed by the child, and is in the child’s best interests, because of being a child” as provided in s 26(2) of the HR Act. The Department submitted that a decision that GBJ’s case is an exceptional case will be nevertheless compatible with human rights, because, despite any limit the decision places on his human rights, the decision will be justified by the factors outlined in s 13 of the HR Act. The decision will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which is itself a human right in accordance with s 13(2)(b) of the HR Act. Further, any limitation on GBJ’s human rights is consistent with the object, purpose and paramount principle of the WWC Act: that is, the welfare and best interests of children are paramount.
The Department, noting the object of the WWC Act and the principle that the welfare and best interests of a child are paramount, supports a precautionary approach to decision making in child-related employment matters. It states overall, the material indicates GBJ’s recent drug offending occurred in the context of drug misuse over an extended period of time, and that continued intervention by the courts was not sufficient to deter GBJ from continued drug misuse. The material indicates the risk factors and triggers to GBJ’s drug use remain present in his life, and he has not gained insight or effective strategies to mitigate the risk of relapsing in the future. Accordingly, the Department submitted that GBJ’s case remains an exceptional case in which it would not be in the best interests of children for him to be issued a blue card.
GBJ asked that the Tribunal consider that a person can make mistakes in life and change for the better, bad choices can lead to big learning and that mistakes are part of growing up. They can help a person learn and improve with acknowledgment of the errors and accept guidance for improvement. He believes that he has learnt much from his past and that he can faithfully abide by his doctor’s guidance for his medical condition. That he can diligently care for his clients in all aspects of their care and wellbeing. He says he loves his profession and enjoys providing care, and wishes for his blue card to be reinstated so that he can once again be a productive and worthwhile member of his community.

Discussion

GBJ is passionate about being a carer and feels he has found his calling. His work as a carer is well respected by his colleagues and the parents of those he provides care for. He is also held in high regard by friends and others he has had dealings during his life some of whom acknowledge the mistakes he has made and that he has learnt lessons and is now a better person. Many of them attest to his ability to deal with children. These are all positives for him.
When he was seeking employment as a carer he had a conviction recorded for drug possession which was disclosable and he made clear to his employer and colleagues that his drug use was in the past. Some said he was shamed by it. This indicates that GBJ understood the importance of not continuing to use drugs while being a carer. The reality was that he was employed as a carer on 6 December 2018 and was charged with being in possession of 292 grams of cannabis on 23 January 2019. In his oral evidence GBJ said he relapsed because of pain and was using 3 grams a day due to extra pain, which meant that he had nearly 100 days of supply.
While he asserted that he only used cannabis when there was a 13-hour gap between his use and being on shift it was clear from the evidence of his colleagues that he would often be called in to do extra shifts. This was noted by the Department and they submitted that the fact he was using cannabis while working as a carer was a risk factor. Another risk factor was the fact that GBJ had recommenced use of cannabis after a conviction in July 2018, which he said was a wakeup call. This was evidence that he had a high risk of recidivism. GBJ admitted that his cannabis use had commenced as a teenager when the police brief from 2016 was put to him. He has a long history of cannabis use with three convictions over a relatively short period of time. GBJ also claimed in his life story to have stopped using cannabis in 2019 which he later admitted was incorrect having regard to the letter from Mr P.
While GBJ detailed techniques such as yoga and meditation as ways he had developed to deal with his triggers, he also made it clear that he would have to endure pain while he was providing care. These techniques would not provide him with relief during the period that he could have children in his care. This would indicate that he would need some other form of pain relief and it is known that his preferred method is to use cannabis.
As discussed above, insight into the effects of the offending behaviour is an important protective factor. GBJ has insight that his continued use of cannabis puts his ability to be a carer at risk due to not being able to obtain a blue card, and has said he would stop the use of cannabis, asserting that he is now using medicinal cannabis, though this was not addressed at the hearing and will not be considered in this decision. If GBJ has indeed stopped using cannabis illegally and is now using it by prescription that is a matter to be addressed in a further application to the Department with full details. GBJ has shown no insight into the potential risks of him providing care to children while he is under the influence of cannabis. Those risks are well known and are set out above.
GBJ considered the triggers for his cannabis use included ADHD, inability to sleep and pain resulting from work injuries and an assault. He cited the adverse effects of pharmaceuticals on his ability to think, that they made him a zombie and that they made him ill possibly as a result of a sensitive stomach. In effect GBJ was self-medicating and operated on a belief that the effects of cannabis started wearing off after 4 hours and were gone within 13 hours. He had no proof of this. As mentioned, it would appear that due to his taking up shifts which were not on his roster, these timeframes would not always have been met. There was also only one witness who agreed that he would get an 8-10-hour break after a long shift. While it is noted that none of his colleagues or parents of clients had issues with the care he provided, there is the potential that he would be providing care while under the influence of cannabis and that is a matter that the Tribunal must give close regard to. The fact that GBJ has been able to perform his role as a carer while under the influence of cannabis also leads the Tribunal to consider that he believes that using cannabis is not detrimental to his undertaking his role as a carer, which goes to why his insight into the effects of cannabis use was limited to the threat it puts to him obtaining a blue card.
The paramount principle is that the welfare and best interest of children are paramount and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. I am required to make my decision in accordance with this principle. GBJ’s interests in continuing to be a carer are not relevant to my decision and having regard to the principle as submitted by the Department a precautionary approach is required. Therefore, while there is some evidence that GBJ provided appropriate care, the potential that he may put the wellbeing of children at risk while providing care must be taken into account.
The question is then whether this is an exceptional case where it is not in the best interests of children for GBJ to have a blue card. He submits that children would not be at risk as he does not intend to work with children and that the requirement for the blue card is that of the support service. The Department submitted that a blue card cannot be made conditional and that once issued GBJ may engage in any form of child-related employment. I accept that submission and while GBJ may assert that he does not currently have an intention to provide care to children the provision of a blue card will give him that authority.
I am satisfied that while providing care and having asserted that his use of cannabis was in the past GBJ continued to use cannabis, which meant that he was providing care which may have put his clients at risk having regard to the effects of cannabis use set out in TWE. GBJ did not have regard to whether or not he was under the influence of cannabis and did not inform the support service of such when he took up the offer of extra shifts. He continued to use cannabis and had the intention to use it long-term having regard to the amount he possessed when he was charged by the police in January 2019, while the Tribunal would have been highly concerned about the recency of the 2018 conviction in respect of whether this was an exceptional case. His use while employed as a carer, when he had maintained he had ceased its use and showed shame, meant that he had no intention of stopping its use at that time, and did not consider its use before undertaking care duties to be an issue which could put his clients at risk of harm.
For these reasons I am satisfied that this is an exceptional case where it is not in the best interests of children for GBJ to be issued a blue card.
The Tribunal is required to ensure that its decision is in accordance with the requirements of the HR Act. I acknowledge that this decision impacts certain rights of GBJ in regard to a fair hearing, privacy and reputation, to be balanced against the rights of children generally to the protection that is needed by the child, and is in the child’s best interests, because of being a child. Having regard to the paramount principle the rights of the child are higher priority than those of GBJ. GBJ was given a fair hearing through the Tribunal process. The Tribunal may place reasonable limits on GBJ’s rights in accordance with s 13 of the HR Act. In this case the limitation is to ensure the protection of children and having regard to my being satisfied that this is an exceptional case I am satisfied that the limitation on GBJ’s rights is necessary to ensure the protection of children whose rights are in accordance with the WWC Act to be given paramount consideration to those of GBJ. Having regard to GBJ’s privacy rights these reasons will be published in a de-identified form.
The matters canvassed in these reasons are very personal to GBJ and detail extensively his criminal history and other matters the disclosure of which may affect him beyond the purpose of this legislation and may infringe his right to privacy as mentioned above. I consider that it is in the interests of justice that these reasons be de-identified in accordance with s 66 of the QCAT Act to protect the interests of GBJ.

Order

I order that the decision of the Director-General, Department of Justice and Attorney-General that GBJ’s case is “exceptional” within the meaning of the Working with Children (Risk Management and Screening) Act2000 (Qld) is confirmed and the reasons for this decision when published must be de-identified.
Publication of the name or any identifying information of GBJ or any person associated with him other than to the parties to the proceeding is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Accordingly, the reasons for decision will be published in a de-identified format.