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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GBJ v Director-General, Department of Justice and Attorney-General [2024] QCAT 230
Case: [2024] QCAT 230
Decision Date: 31 May 2024

CaseChat Overview and Summary

In the case of GBJ v Director-General, Department of Justice and Attorney-General, GBJ sought judicial review of a decision by the Director-General, Department of Justice and Attorney-General to issue a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld). GBJ argued that he should be issued with a blue card to enable him to work for a support service, but the Director-General disagreed, finding that it would not be in the best interests of children to issue a blue card to GBJ. The primary legal issue before the court was whether GBJ's case constituted an "exceptional case" within the meaning of section 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld), such that it would not be in the best interests of children for him to be issued with a blue card. The court found that GBJ's criminal history, including convictions and charges for drug-related offences and other criminal activities, was relevant in determining whether his case was an exceptional case. The court held that the paramount consideration was the welfare and best interests of children, and any hardship or prejudice suffered by GBJ as a result of not obtaining a blue card was irrelevant. The court also held that the recency and repetitive nature of GBJ's offending supported a finding that his case was an exceptional case. Accordingly, the decision of the Director-General to issue a negative notice to GBJ was confirmed. The court further ordered that the reasons for its decision be published in a de-identified format to protect the privacy of GBJ and any person associated with him.

Orders

Orders of the court

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) Act 2000 (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 Act 2009 (Qld). Accordingly, the reasons for decision will be published in a de-identified format.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 offencesOn 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 offencesHe 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 offencesOn 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 offencesOn 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 offencesOn 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.