GKS v Director-General, Department of Justice and Attorney-General - [2023] QCAT 234

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

GKS v Director-General, Department of Justice and Attorney-General [2023] QCAT 234

PARTIES:

GKS

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML439-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

27 June 2023

HEARING DATE:

9 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

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 Section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside, and replaced with the decision that it is not an exceptional case.

2. The publication of the contents of any document or thing filed in or produced to the Tribunal, and any evidence given to the Tribunal by any witness, other than as published in these Reasons, is prohibited to the extent that it could lead to the disclosure of the identity of the applicant, or any member of the applicant’s family or any non-party to the proceedings, including any child, pursuant to Section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE LAW- CHILD WELFARE UNDER STATE AND TERRITORY LEGISLATION – Blue Card – where applicant was issued with a negative notice – whether exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice – where applicant has a criminal history in relation to offences of assault involving intoxication – where applicant has expressed remorse for her offending – where the applicant has completed community service and probation, and has changed her use of alcohol –where the applicant wishes to work in a caring role and has the support of her friends and colleagues.

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221

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

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

R Johnson, Legal Officer, Department of Justice and Attorney-General

REASONS FOR DECISION

GKS is a 27-year-old female. She applied for a blue card on 15 April 2019. The Director, Blue Card Services (Screening Services) Department of Justice and Attorney-General (‘the Department’) made a decision on 28 September 2020 to issue a negative notice.
GKS filed an Application to review the decision on 26 October 2020. The matter was listed for hearings on 3 December 2021 and 10 June 2022 which were cancelled, and the matter came on for hearing before me in an oral hearing on 8 February 2023.
At the conclusion of the hearing, I gave directions for the filing of closing submissions, and filed submissions were received from GKS on 10 March 2023.
These are my Reasons and decision in the matter.
Reasons of the department
In its reasons dated 28 September 2020, the Department noted that GKS had the following criminal history:

Court

Date

Offence

Order

Southport Magistrates Court

24 July 2015

Drunk or disorderly in premises to which a permit/license relates (on 13/06/2015)

No conviction recorded

Not further punished

Southport Magistrates Court

24 October 2018

Assaults occasioning bodily harm (2 charges on 18/05/2018 and 19/05/2018)

Drunk or disorderly in premises to which a permit/license relates (on 19/05/2018)

On all charges:

No conviction recorded

Probation 2 years

Community service 200 hours

Compensation $3000

Compensation $1000

No conviction recorded

Not further punished

The Department described her criminal history from the police information as follows:[1]
The applicant’s criminal history records offences of public intoxication in 2015 and 2018 with her recent offending involving assault of an innocent bystander and sustained attack on a security officer tasked with ejecting her from the licensed premises due to her demonstrated aggression and disorderly behaviour.
The material indicates the applicant made threats towards venue staff before security approached her, requesting that she leave. The applicant responded punching a female security officer in the mouth and resisted the officers and their subsequent attempt to restrain and remove her.
In her struggle against the security officers, the applicant appears to have grabbed hold of the hair of another female patron, pulling her down to the ground. A further male security officer has rendered his assistance with the applicant commencing a protracted assault, by way of human bite, with her forcefully and repeatedly biting down on his bicep, refusing to release the bite despite his verbal and physical attempts for her to desist. The male complainant suffered immense pain and injury, requiring treatment and communicable disease testing given the nature of his wound, which would have likely caused further emotional distress. He also required a week’s absence from his employment following the incident. The applicant, on her arrest and transportation to the watch house, persisted in her violent behaviour, screaming and resisting police, and as a consequence she was unable to be interviewed in relation to the matter.
[1]Reasons of the Department, 28 September 2020, [5.4].
The Department noted that it did not know the courts reasons for the penalties in 2018.[2]
[2]Reasons of the Department, 28 September 2020, [5.5].
The Department noted that GKS’s ‘history of violence and antisocial behaviour’ reflected adversely on her eligibility to hold a blue card.[3]
[3]Ibid [6], BCS-14.
The Department noted there were protective factors to her credit:[4]
·She had expressed remorse for the disease and injury caused to the complainants.
·She had voluntarily submitted to infectious disease testing, providing her negative test results to the court.
·She had satisfied the compensation and community service orders and continued to exhibit compliance with the conditions of her probation order.
·She had moderated her use of alcohol.
·She appeared to hold good insight into her mental health symptoms and their management, and in supporting her mental stability and wellness she remained compliant with her treatment regime and utilises a self-care plan.
·Character references attested to her expressions of genuine remorse for her apparent offending behaviour with all appearing confident in her ability to take appropriate measures in ensuring her offending is not repeated.
·She appeared well supported by a strong network of family, treating health professionals, social and professional peer groups and demonstrated ongoing involvement in pro-social activities, including tertiary study, voluntary work and gainful employment; and had previously fulfilled positions requiring positive role-modelling to children, and in her then current role she had provided support to adults with high care needs.
[4]Ibid [6], BCS-15.
The Department expressed concerns however as to her long-term behaviours, and the significance of her offending:[5]
The applicant’s commitment to living a law-abiding and productive life appears clear and her efforts to this end whilst commendable recent and ongoing. The applicant at this time remains subject to probation and is therefore yet to have the opportunity to demonstrate her ability to abstain from offending behaviour and maintain positive change within her life on a long-term basis. It remains that, at this early stage, the absence of further offending may be a reflection of the supervision inherent in the current order and threat of further penalty being imposed, as opposed to her achievement of genuine rehabilitation. It is further noted that this recent period of non--offending is commensurate with that exhibited between the recorded offending incidents of 2015 and 2018.
Of further significance, I remain concerned that the applicant is still yet to develop full and meaningful insight into her offending conduct, as her recent submissions reflect, she has sought to minimise her own actions, largely deflect blame to the security staff, including the male complainant involved. A lack of insight in this regard is of concern, particularly in view of the serious and protracted nature of her assault on the male complainant and the physical, psychological and financial detriment he would have likely suffered as a consequence of his injury. Whilst I acknowledge the applicant’s express disagreement with certain particulars of the police brief of facts, I am not able to go beyond the fact of her conviction and further note that she had submitted her version of events by way of affidavit to the sentencing court for its consideration. Notwithstanding, her admitted offending conduct resulted in substantial penalty and compensation payment, further demonstrative of the significance of the harm which flowed from her offending.
[5]Ibid, BCS-15.
It concluded that it was not in the best interests of children and young people to issue the applicant with a blue card ‘at this time’.

The Hearing

Evidence was given at the hearing by GKS; Dr. Ellis-Smith, a forensic psychologist; CR, one of her employers (Exh 8); IC, a friend (Exh 11); MS, one of her employers (Exh 9); MB, a friend (Exh 6); SS, a friend (Exh 7).
The Department tendered a bundle of documents, including material obtained from Queensland Police and Queensland Correctional Services.
GKS
GKS filed a document setting out her life story. She noted that she had a stable childhood with her parents, and attended primary school in south-east Queensland. When she was about nine years old, her mother noticed that she was fixated on food and would often hoard food, as well as being easily distracted, moody, and her ability to complete and understand schoolwork was decreasing.[6]
[6]Life Story dated 15 February 2021, p 1.
Her mother engaged a psychologist, who a few years later in 2007, in consultation with a psychiatrist, diagnosed her with ADHD and she started medication.[7]
[7]Ibid, p 1.
Her parents divorced in 2007, and she moved into 2010 with her mother to another location in South East Queensland, and then went to live with relatives. She was struggling with high school and had a major depressive episode, returning in year 11.[8]
[8]Ibid, p 1.
After completing high school she first worked at a hairdresser, then commenced a Diploma of Youth Work in 2016. In 2017 she commenced a Bachelor of Social Work degree, but was unable to complete her placement due to her adverse blue card assessment.[9]
[9]Ibid, p 1-2.
She started seeing a psychiatrist in 2014 prescribed medication to reduce anxiety and emotions she was feeling at that time about abandonment in relationships. The mental health support she was receiving at that time all had findings of consistent depression and anxiety.[10]
[10]Ibid, p 2.
She started seeing a psychologist shortly after the incident took place in 2018 and said that she received a lot of benefit from the sessions which were occurring fortnightly in the beginning, then occurred four – six weekly. She said that she was diagnosed with PTSD in 2019, and believes that she had always had a complex type of PTSD due to sexual and physical abuse from childhood.[11]
[11]Ibid, p 3.
She has been a patient of a psychiatrist since March 2020 and attends regular ongoing appointments which she feels a lot of benefit from.[12]
[12]Ibid, p 2.
She noted that in both 2015 and 2018, she was on prescription antipsychotics and antidepressants. She stopped those medications in 2019 and remained un-medicated and she felt immediate benefits.[13]
[13]Ibid, p 2.
She said that she suffered a complete breakdown in her support system in 2018 particularly due to family losses and events, and personal relationship difficulties.[14]
[14]Ibid, p 3.
In her evidence at the hearing, she said that since writing her life story she had been successful in obtaining an assistant management role at a support service, and feels a lot of value in the work she does. She is continuing her studies in a Bachelor of Social Science at a Queensland University.
She said that she still continues to see her psychologist and checks in monthly; is still not a regular drinker, and doesn’t really consume alcohol at all; and still uses a self-care plan. She has been in a stable relationship with her male partner since May 2021 and has a good support network of family and friends.
In cross examination she said that after she committed the offences in 2018, that was the ‘boiling point’ in therapy which caused her to ‘open up’.
She said that at the time of the offences in 2015 that she was 18 years old, and was in a nightclub around 11:00pm or 11:30pm. She said that she was with a friend who wanted to go to the toilet as she was feeling sick, and who was stumbling as they were walking through a crowd of people. She said that a security guard was pulling them to go out the back door of the nightclub, and there was a scuffle between all three of them. She said that she dropped her phone, and the security guard took it, and said that she was not getting it back until she saw the police.
She said that she frequented pubs and nightclubs about once a fortnight at the time, and drank alcohol in the company of a group of about 10 girls, and would binge drink 10 to 20 pre-mixed drinks.
She told a couple of close friends in 2015 about what had happened, but did not access any supports.
She said that when she was 18 to 21, most activities on the weekend involved some alcohol being available, but that she stopped after 2018. She described the charges in 2018 as having ‘blown a massive missile’ into her life.
She disagreed with the Police version of events in 2018, and denied that she said the Manager should watch her back and that she would burn the place down. She agreed with the charges, and said that she resisted violently as she was scared, and put it down to the alcohol.
She said that her acts were not premeditated, and that she was in a ‘rough spot’ in her life, having just got out of a stressful relationship, having depression, and not understanding the effects of drinking whilst on medication. She said that drinking made her feel withdrawn and not able to express emotions, and that night was the most she had ever drunk in one night, being a whole bottle of spirits and about 20 other premixed drinks.
She said that if she was faced with similar circumstances again she would be ‘straight out the door’ and would not argue with anyone.
She was asked about use of cannabis, and said that she used cannabis between 2013 and 2015, as experimentation.
She said that in the last six months she had drunk alcohol at low levels, and in Christmas had a couple of cocktails, but did not drink to a ‘drunk feeling’.
Dr. Ellis-Smith
Dr. Ellis-Smith is a forensic psychologist. She prepared a report dated 28 February 2022. She had read the reasons of the Department and had been provided with copies of various background documents.
She said that GKS had attended her rooms for assessment on 4 January 2022 and 11 January 2022, and completed several personality and risk assessment psychometric instruments to identify elements of outstanding violence risk. Additional risk assessments were conducted based on available file information.
She noted that GKS was being treated by a psychiatrist in 2020-2021, and that a report by her treating psychiatrist dated 9 September 2021 noted that GKS had a sound understanding of the impact of her offending, was remorseful and fully engaged in treatment; had ceased binge drinking and was progressing well in her career. Her psychiatrist had diagnosed mixed anxiety and depression and attention deficit hyperactivity disorder, and that her symptoms of post-traumatic stress disorder had eased, and that diagnosis was no longer applicable. The treating psychiatrist reported that she was not aware of any ongoing risky behaviour associated with binge drinking since she had commenced treating GKS.[15]
[15]Report of Doctor Ellis-Smith, 28 February 2022, [7.5].
Dr. Ellis-Smith conducted a range of personality assessments, and concluded that these reveal no clinical dysfunction, with no evidence of personality disorder or psychiatric illness, however GKS does report experiencing periodic anxiety and worry about relationships which is not considered to be in the marked extreme range or chronic, but more likely based on situational triggers.[16]
[16]Ibid [8.19].
She conducted four assessments of risk of violence, and concluded that GKS is considered to be low risk of future physical harm to others, and supported her application for a blue card.[17] She concluded as follows:[18]
10.12 As detailed above, (GKS) actively maintains her engagement in psychiatric and psychological treatment, she complies with prescribed medication, she is focused on improving her employment skills by undertaking further study and has significantly reduced her alcohol consumption. These preventative strategies are sufficient to prevent further offending. (GKS) does not present with an elevated risk of further violence.
10.13 Based on the full violence risk assessments and the two personality assessments conducted, I’m satisfied her risk to anyone – particularly children, is negligible and I am able to comfortably conclude; (GKS) is unlikely to demonstrate violence in the future.
[17]Ibid [9.7].
[18]Ibid [10.12].
Dr. Ellis-Smith commented on the application by GKS for a blue card as follows:[19]
11.1 (GKS) is seeking a QCAT review of the decision by Blue Card Services to issue a negative notice. She requires a Blue Card to undertake additional studies in a current role with (disability services provider). Her application has been opposed by the Department due to her offending in 2015 and 2018 when she was aged 19 years and 22 years respectively. In my view these two incidents appear to be isolated and significantly influenced by alcohol consumption. (GKS) has demonstrated a commitment to ensuring this behaviour is not repeated. I do not consider her to be at risk of further violence, or any risk to children, and as such support her application.
[19]Ibid [11.1].
In cross examination, Doctor Ellis Smith said that her assessment was not based on the earlier psychiatrist’s report, but was her opinion, and that she stood by her report.
CR
CR is a manager with the disability support service which employs GKS. In a letter of support, she noted that GKS had commenced employment with the service in July 2019 as a Support Worker, and had become a Transition Assistant in 2020 – 2021.[20]
[20]Letter 19 April 2021 (Exhibit 8).
She noted that GKS employment had been exemplary, and there had been no performance concerns. She described GKS as a valued employee who ‘has made valuable contributions to our organisation and our customers during her employment’.[21]
[21]Ibid, p 2.
In cross-examination, she said that GKS actions in the past 4 years have been impeccable, and there was no evidence of violence or aggression.
IC
In evidence, IC said that she is a close friend of GKS, and has known her since 2010. They socialise several times a week, and were at school together from 2013.
She said that she had observed GKS with children, and that she was ‘really good’ with them, and was a ‘people person’.
MS
MS is the direct line manager for GKS at the disability services provider she works for. She described how GKS has assisted her to support participants with disabilities aged between 18 and 26 who reside in 24/7 residential support group homes as well as the support workers in each home.[22]
[22]letter 16 April 2021 (Exhibit 9).
She described GKS as a valued employee, and described her as follows:[23]
Since I have known GKS I have seen a very mature, positive young lady who is very passionate about social justice issues and human rights. GKS has demonstrated that she is extremely knowledgeable in what constitutes good practice in these areas and willingly shares her knowledge with others.
[23]Ibid, p 2.

In her evidence, she said that she had observed GKS in work with clients, and there had never been any concerns, and had never been any physical altercations in which GKS had been involved.
MB
MB is a friend of GKS. He is also involved in the disability sector. In a letter dated 19 April 2021, he said that he had known her as a close friend since 2011, and is aware of her previous charges.
He described GKS as follows:
After 10 years of friendship, I know (GKS) to be a compassionate person with both integrity and a passion for supporting children and people with disability.
I can say with confidence that one should not be concerned that (GKS) would harm the interests of children or people with disability. In fact, (GKS) lived experience in overcoming adversity serves only to demonstrate that she is well-placed to safeguard the interests of vulnerable Australians.
Even in the face of charges for the mistakes she has made in the past, for which she has shown significant remorse and taken every step to make amends, (GKS) has continued to demonstrate a commitment to vulnerable Australians. She remained committed to pursuing her studies in social work and is highly regarded in her professional work in the disability services sector.
In cross examination, he said that he catches up with GKS once or twice a year, and would agree that he forms part of her support network.
SS
SS said in a letter dated 19 April 2021 that she had known GKS for approximately nine years, and considered her a personal friend. She was aware of the previous charges against GKS, and said that ‘when this information was first disclosed to me in 2018, (GKS) showed a tremendous amount of remorse. I could sense she was embarrassed by her behaviour.
She described the remorse shown by GKS as follows:[24]
When I spend time with GKS she frequently brings up the charges, especially the 2018 occasion. She tends to spend a lot of time reflecting on the situation in the way her actions impacted the people around her, as well as herself. GKS very much expresses immense guilt for the bodily harm charges and often refers to the entire occasion as a traumatic experience. When referring to it as a traumatic experience, she often notes of people she hurt and further the significant impact her actions have had on her perceived ability to support others, especially children or those whom identify with disability. GKS has always maintained an ethos of care and I believe her actions do not align with her true morals and values: integrity, honesty, reliability and compassion.
[24]Letter from SS, 19 April 2021, p 1.
Sentencing comments
No sentencing comments were available as to the 2015 charges, but a transcript of proceedings of the Magistrate’s Court at Southport in 2018 was tendered.[25]
[25]Transcript of proceedings, Southport Magistrates Court, 24 October 2018, (Exhibit 2).
The Magistrate noted that GKS had entered timely pleas of guilty to the three offences and that this enabled the penalty to be reduced, demonstrated her remorse for her offending and that she was taking personal responsibility.
The Magistrate said that they were primarily concerned with the two offences of assault occasioning bodily harm which were a gross overreaction to what was happening with the security officers, and that she not only assaulted the security officer by biting him on the arm and breaking the skin and causing bruising and blood loss but also pulled out the hair of an innocent bystander.[26]
[26]Ibid p 2, L 12-19.
The Magistrate noted that GKS mother had provided a letter explaining her upbringing and issues she had been exposed to as a child, that she had some very good references from family and friends and colleagues who all spoke very highly of her and of her abilities. They observed that she appeared to be learning from her mistakes, as follows:[27]
You are a person of intelligence. You are not stupid. You are quite intelligent, from what I can tell. And so you have an obligation to yourself, your family and the community to learn from your mistakes. I think you’re doing that, but you are going to have to keep doing it for some time.
[27]Ibid p 3, L 32.
The Magistrate discussed the options available and concluded that a probation order was appropriate, saying as follows:[28]
So you have a duty, as I said, to yourself, your family and the community to learn from these mistakes. They are real doozies. Real big serious mistakes to behave like this.
Another element – another principle or guideline that I must follow – is the need for deterrence of you and others, as I have said, from committing the same or similar offences. And, of course, I can consider one or all of those in combination. Every case has to be judged on its own facts. Every case is different.
So, as I said, I think a probation order would be appropriate. And now that you have heard all of those things that have to take into account, I can tell you that I think a two-year period as appropriate, as (lawyer) submitted.
When I look at how long a probation order should be, I am not so much concerned with that element of punishment, but how long it takes for human beings to learn something. And that depends on what all the issues are and what a person’s personal circumstances are.
So weighing up all the things I know here, a two-year period of probation would be appropriate and an order that you perform 200 hours of community service. You are to have 12 months to do the community service. But a community service order ends as soon as you have done the last hour.
[28]Ibid p 5, L 32.
Submissions of GKS
In her submissions filed on 10 March 2023, GKS submitted that the offences were not recent and her behaviour is not reflected in her life now:[29]
I wish to highlight 2015 was eight years ago and 8 May 2018 is five years ago at the time of this review taking place. I believe these are considered to be historical now, and not just due to the passage of time. They are historical to me as these events are behind me in my way of life. I do not forget my offending ever, nor dismiss it however there is not currently anything happening my life regarding the offences.
[29]Submissions of GKS filed 10 March 2023, [2].
She notes that she has completed substantial study and training since 2018 in personal safety, therapeutic crisis interventions management of actual or perceived violence, conflict resolution, positive behaviour support and restrictive practice; and has acquired skills in the course of her work.[30]
[30]Ibid [7].
She submitted that whilst a support network and psychological support was available to her in 2015 and 2018, that she has only seen the true value of therapy since 2018 when she started seeing her psychologist and psychiatrist, which has been very healing and wholesome to her, and she generally enjoys her appointments with them and enjoys seeing them.[31]
[31]Ibid [21].
She said that since the day of appearing in court in October 2018, that she has lived every day since then with a passion and positivity to make a change not only in herself but in the world, and would not take a positive notice for granted if it was issued.[32]
[32]Ibid [26].
Submissions of the Department
The Department elected not to file closing submissions, but had filed an ‘Outline of Submissions’ on 24 February 2023. Those submissions generally accorded with the Reasons given for the Decision, which have been previously canvassed.
Discussion
GKS was 19 years old at the time of the first offending in 2015; she was 22 years old at the time of her second offending in 2018. She is now 27 years old.
The central issue in this matter is whether GKS, as a 27-year-old woman, would reasonably be seen as likely to act in the same manner as she did as a 19 year old and 22 year old woman.
The material indicates that GKS experienced mental health issues during her schooling years. She was prescribed medications to treat her for depression and anxiety.
The offences in 2015 and 2018 shared common elements of her attending nightclubs and drinking alcohol to excess.
She acknowledges that her actions in 2015 and 2018 were wrong, and has expressed strong remorse for them.
She now works for a service that provides care to persons, and is continuing to pursue her studies in social work. Very supportive references have been provided by her employers, colleagues and friends, all attesting to her reliability and suitability to work in a caring role.
She has been open in disclosing her earlier offences to her referees.
She is in a stable relationship with her partner.
The Department acknowledges that there are protective factors to her credit, in complying with the conditions of her community service orders and probation; moderating her use of alcohol; having good insight into her mental health management; and being well supported by a strong network of family, treating health professionals, social and professional peer groups.
Five years have now passed since her offending in 2018. The Magistrate in their sentencing comments stressed the duty of GKS to learn from her serious mistakes.
I am satisfied that the material supports a conclusion that GKS did take stock of her lifestyle and behaviour in 2018, and took notice of the comments of the Magistrate, and has made genuine and effective changes to her lifestyle and behaviour for the better.
Dr Ellis-Smith was clear in expressing the view that GKS poses a negligible risk to anyone, particularly children, and was able to comfortably conclude that GKS is unlikely to demonstrate violence in the future.
I am satisfied that that the correct and preferable decision is that this is not an exceptional case in which it would not be in the best interests of children for the Chief Executive to issue a positive notice, and that a negative notice should not be issued to GKS pursuant to Section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld).
Accordingly, I set aside the decision of the Director-General, Department of Justice and Attorney-General that GKS case is exceptional within the meaning of section 221 of that Act, and replace it with the decision that it is not an exceptional case.
Non-publication order
GKS has sought that a non-publication order be made. The Department has not objected to the making of such an order.[33]
[33]Submissions of the Department filed on 24 February 2023 [89].
I am satisfied that the identification of GKS, in the context of her past offending, and her past history of mental health issues, may endanger her mental health, and make an order pursuant to section 66(1) of the QCAT act as follows:
The publication of the contents of any document or thing filed in or produced to the Tribunal, and any evidence given to the Tribunal by any witness, other than as published in these Reasons, is prohibited to the extent that it could lead to the disclosure of the identity of the applicant, or any member of the applicant’s family or any non-party to the proceedings, including any child, pursuant to Section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).