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

[2025] QCAT 139

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

GLG v Director-General, Department of Justice and Attorney-General [2025] QCAT 139

PARTIES:

GLG

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL

(respondent)

APPLICATION NO/S:

CML541-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

15 April 2025

HEARING DATE:

29 April 2022

HEARD AT:

Wynnum Courthouse

DECISION OF:

Member Allen

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General dated 18 November 2020 that GLG’s case is an exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act2000 (Qld) is confirmed.

2. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act2009 (Qld) the publication of any document or thing related to this matter other than to the parties except in de-identified form is prohibited.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks review of a decision to issue a negative notice and cancel his blue card – where applicant has a criminal history involving drug offences – where applicant now prescribed medicinal marijuana – whether exceptional case where it is not in the best interests of children to issue a blue card 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 Grindrod (No 2) (2008) WASCA 26
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 Lister (No 2) [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
Commissioner for Children and Young People v Storrs [2011] QCATA 28
ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102
CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
McKee v McKee [1951] AC 352
LO v Director-General, Department of Justice and Attorney-General [2022] QCAT 16
RPG v Public Safety Business Agency [2016] QCAT 331

RWH v Director-General, Department of Justice and Attorney-General [2021] QCAT 407

Re TAA [2008] QCST 11
TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489
TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Ms Davis, in-house legal representative

REASONS FOR DECISION

1. GLG held a blue card issued to him on 28 March 2018 which authorised him to work with children under the Working with Children (Risk Management and Screening) Act 2000 (‘WWC Act’). His police information changed and ultimately, he received a notice of cancellation of his blue card and issue of a negative notice and statement of reasons dated 18 November 2020. This meant that he was no longer eligible to work with children in Queensland. He has made application to the Tribunal to review that decision.

The Legislation

1. 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. The object of the WWC Act is to promote and protect the rights, interests and well-being of children in Queensland through a scheme to screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so.[1] The principles under which the WWC Act must be administered are that the welfare and best interests of the 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.[2] A child related employment decision must be reviewed by the Tribunal under the principle that the welfare and best interests of the child are paramount.[3]

   [1]WWC Act s 5(b).

   [2]Ibid, s 5.

   [3]Ibid, s 360.

2. Where someone has been issued a blue card, the police commissioner is required to notify the Department if the police information in regard to that person changes.[4] The Department then reassess that person’s eligibility for a blue card in the same way that an original application is determined.[5]

   [4]Ibid, s 317.

   [5]Ibid, s 304A and s 294.

3. Applications for prescribed notices are determined in accordance with s 221 of the WWC Act where the person has no relevant information or conviction etc for a non-serious offence. Where the Department is aware of relevant information, as is the case here, the Department must issue a negative notice if the Department is aware of relevant information about the person and 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.[6] In this case, GLG has a history of drug offences for which he has been charged and fined some with convictions recorded and others without convictions being recorded. The decision under review is then whether GLG’s case is an exceptional case.

   [6]Ibid, s 221(2).

4. The Department noted in its submissions that the term “exceptional case” is not defined in the WWC Act. That 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 the interests of the persons whom it is here, quite obviously, designed to protect: children”.[7] I note that the Tribunal in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 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[8] (‘Maher’)] to consider its application in each particular case, unhampered by any special meaning or interpretation.[9]

   [7]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31] (‘FGC’).

   [8][2004] QCA 492.

   [9]FGC [33].

5. 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 are “merely certain particular matters which the [Tribunal] is obliged to consider in deciding the application.”[10]

   [10]Maher [41], per Phillipides J.

6. The Tribunal when reviewing a blue card decision stands in the shoes of the decision maker and must make the correct and preferable decision[11] based on a fresh hearing on the merits.[12] 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.[13] 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.[14] The Tribunal may determine the application by confirming or amending the original decision; setting aside the original decision and substituting its own decision; or setting aside the original decision and returning it to the decision maker with or without directions for reconsideration.[15] There is no onus of proof which must be discharged by either party in regard to the application[16] and the Tribunal must make its decision based on the balance of probabilities in accordance with the decision in Briginshaw v Briginshaw, bearing in mind the gravity of the consequences involved.[17]

   [11]Queensland Civil and Administrative Tribunal Act2009 (Qld) s 20(1) (‘QCAT Act’).

   [12]Ibid, s 20(2).

   [13]Ibid, s 19(a).

   [14]Ibid, s 21.

   [15]Ibid, s 24.

   [16]Commissioner for Young People and Children v Storrs [2011] QCATA 28.

   [17]Maher citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (‘Briginshaw’).

7. Having regard to the paramount principle and the requirement that the Tribunals review of an employment related decision is to be under that principle the Department submits, as relevant, the Oxford dictionary definition of paramount to mean “more than anything else; having supreme power”. It submits that in Maher,[18] 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”.

   [18]Maher [3].

8. The Department further submitted that the paramount principle ought to inform the standard of proof required in decisions under the WWC Act, and that in Maher, it was accepted that the test in Briginshaw applied to child-related employment decisions. 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 the consequences involved, that there was an exceptional case.[19] The Department submitted that given the paramount principle and the nature of the decisions under the WWC Act, the “gravity of consequences involved” should be taken to mean the gravity of consequences for children if a blue card were to issue. Any consequences, in terms of prejudice or hardship to GLG, are not relevant in child-related employment decisions.[20] 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 Chief Executive Officer, Public Safety Business Agency v Masri.[21] There the Appeals Tribunal references the paramount principle in holding that the Briginshaw test ought to be employed “bearing in mind the nature of the reviewable decision.

   [19]Maher [30].

   [20]Chief Executive Officer Department of Child Protection v Scott(No 2) [2008] WASCA 171, Buss J at 109 (‘Scott (No 2)’).

   [21][2016] QCATA 86.

9. 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 GLG but a consideration as to whether the requirements of s 221 of the WWC Act 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.

10. 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 applicant’s case is an exceptional case. The Department submitted that this interpretation is not correct. In Commissioner for Children and Young People and Child Guardian v Eales,[22] the appeals Tribunal considered the decision in Maher and determined that:

    The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors to find whether an exceptional case existed…At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interests of children for a blue card to be issued to a person…No precondition of an outweighing of negative risks [sic] factors to protective factors was necessary before an exceptional case was found and no use of the word “unacceptable level of risk” was made by the Court of Appeal in the Maher Case.[23]

    [22][2013] QCATA 303 (‘Eales’).

    [23]Ibid, [6]-[8].

11. The Department further submitted that adopting a “balancing” approach risks the Tribunal being led into error. 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, GLG’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.

12. I am of the view that, 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 case. I therefore accept the Department’s submissions in regard to risk and protective factors.

13. 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[24] here include GLG’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.

    [24]HR Act ss 15-37.

GLG’s circumstances

1. The following material considers the matters required to be considered by the Tribunal in accordance with s 226 of the WWC Act in determining whether or not there is an exceptional case in respect of GLG.

2. GLG’s police information changed on 18 December 2019 when he was found guilty of producing dangerous drugs between 1 June 2019 and 1 September 2019, possessing drugs on 25 November 2019 and possessing utensils or pipes etc that had been used on 25 November 2019. GLG was fined $900 with no conviction recorded in regard to all charges. At that time GLG was 62 years old.

3. GLG had prior drug offences. On 1 February 1977, he was fined $100 for smoke prohibited drug (‘Indian Hemp’). He was 21 years old at that time. On 2 March 1989, he was convicted of supply dangerous drugs specified in second schedule (between 6 December 1988 and 11 December 1988). Possession money obtained directly from the commission of an offence defined in section 6 of the Drugs Misuse Act 1986 (Qld) (on 10 December 1988) and Possession dangerous drug specified in the second and third schedule (on 10 December 1988). He was given a recognisance of $1,000 with a Good Behaviour period: 12 months and to be imprisoned for 6 months if recognisance not entered into. He was 31 years old at that time.

4. The offences for which GLG has been convicted are neither serious offences nor disqualifying offences under the WWC Act. The Department submitted that nevertheless, it is clear that Parliament intended that all offences on a person’s criminal history are to be considered in determining their eligibility to work with children in regulated employment.[25]

   [25]Explanatory notes, Commission for Children and Young Peoples Bill 2000, page 11.

5. The circumstances of the 1988 offences from the police brief are that police executed a search warrant at GLG residence on 10 December 1988, where he resided with his wife and small child. Police located the following as a result of the search:-

   (a)A pipe in the lounge room;

   (b)A bag of cannabis in the bedroom,

   (c)A further two bags of cannabis in the lounge room;

   (d)Two pipes in a rubbish bin located inside the house;

   (e)A large cardboard box containing  40 bags of cannabis;

   (f)The sum of $1,000 on the kitchen table; and

   (g)A set of scales.

6. GLG made admissions that all of the above items belonged to him, and that he used the pipe for smoking cannabis and the scales to weight the cannabis. GLG also told police that the 40 bags were a result of 11 sales and that he had purchased two pounds of cannabis on 7 December 1988.

7. The circumstances of the 2019 offences from the police brief are that the police executed a search warrant at GLG residence on 25 November 2019. On arrival, police observed the presence of GLG’s wife and two small children. GLG was at work at that time. Police located the following items throughout various locations of the residence:

   Rear shed

   (a)A grow tent with fans, ventilation lighting and watering set up;

   (b)Cannabis leaf remnants on the floor inside and outside the tent; and

   (c)A red folder containing cannabis growing instructions.

   Garage

   (d)A conduit pipe containing 45 grams of cannabis on a cupboard shelf; and

   (e)Three plastic tubs containing cannabis sees inside the fridge.

   Main bedroom

   (f)A used water pipe inside a stubby cooler beside the bed;

   (g)Two used smoking pipes and less than one gram of chopped cannabis in a gold-coloured bowl; and

   (h)Several jars containing a total of 54 grams of cannabis in the walk-in wardrobe.

8. GLG’s wife denied any knowledge of the items. On 26 November 2019, GLG attended a police station where he voluntarily participated in an interview and stated that he accepted the ownership of the grow tent with fans, ventilation, lighting and a watering system set up located in the rear shed. That between 1 June 2019 and 1 September 2019 he grew cannabis plants in the tent for his personal use to be smoked in the future. He accepted ownership of the red folder with instructions for producing cannabis. He had forgotten about the three plastic tubs containing cannabis seeds in the fridge located inside the garage. He owned the two used smoking pipes located next to the bed. He owned the water pipe in the stubby cooler as well as the cannabis inside a bowl beside the bed. He stated that he used the waterpipe to smoke cannabis the night prior to police attendance. He stated he owned the cannabis located in the glass jars located in the walk-in-robe of his bedroom. He further stated that the cannabis located in the jars was the cannabis that he grew in the grow tent between 1/6/19 and 1/9/19 and that he had dried the cannabis and placed it into the glass jars and intended to smoke the cannabis in the future. He further stated that the located cannabis is for personal use only as he has survived throat cancer and he felt that smoking cannabis provided him with some degree of pain relief.

1. The Department submitted that GLG’s offending is relevant to, and reflects adversely on his eligibility to work with children and young people. GLG’s conviction for supply dangerous drug specified in second schedule raises questions about his ability to act in the best interests of children and young people. The harm caused by drugs in the community are high in terms of the health, welfare and family breakdown issues associated with drug addiction. GLG’s involvement in the distribution of drugs into the community is likely to have had a direct impact on those who used the drugs, as well as an indirect impact on those around the users including children. GLG, while acknowledging that he supplied drugs in 1988, made it clear that he had not done so since nor would he in the future.

2. The Department submitted that GLG’s other drug related offending raises questions about his ability to provide children with a protective environment, as children have a right to be protected from exposure to illicit drugs 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. His other drug related offending also raises concerns about his respect for the law and lawful behaviour. Respect for the law and lawful behaviour is critical for adults working with children as it contributes to the creation of safe and protective environments for children. The importance of an applicant’s respect for the law was recently emphasised in the blue card review matter of IHI[26] where the Tribunal relevantly held that: any child being cared for by a person has a right to have someone who has a respect for the law.

   [26]IHI v Director-General, Department of Justice and Attorney-General [2021] 206 at [84].    

3. GLG stated in his material, and it was confirmed by his witnesses, that he ensured that children were not exposed to drugs which he did so by keeping the areas where drugs were kept locked away and that he never used drugs around children. It was pointed out to him that drugs were found in the lounge room of his house in 1988. He said he could not recall if that was the case. While children had not been exposed to drugs it is clear that GLG had used cannabis illegally while children were in the house where he lived.

4. GLG in his material stated that he was a survivor of throat cancer and that he has side effects as a result of radiation treatment. GLG provided reports from his oncologist confirming that he had throat cancer in 2013 and that he was now prescribed medicinal cannabis to deal with the effects of radiation treatment.  While the Department acknowledges GLG’s reasons for, and circumstances surrounding, his most recent offending, his decision to resort to illicit drugs use suggests he was prepared to resort to non-legal means to manage his health.

5. The Department confirmed that no information was requested under sections 318, 319, 335, 337 or 338 of the WWC Act.

6. The Department submitted that there were other matters relating to the commission, or alleged commission of the offences that is considered to be relevant. The Department submitted that the material before the Tribunal and evidence at the hearing suggests GLG’s past use of illicit cannabis has been more extensive than his criminal history would suggest. He was asked in cross-examination whether he used illicit cannabis between 1988 and 2019. In response, he said he “might have”. He was asked if he used illicit cannabis daily between 1988 and 2019. In response, he said that his use was “not necessarily” daily, he said that he did not use illicit cannabis daily when he worked out in the mines, nor when he worked “anywhere really”. He said his use of illicit cannabis was “more social” – “social” meaning on weekends. GLG was asked in cross-examination whether he had used cannabis after his offending in 2019 but before he was prescribed medicinal cannabis in December 2021. In response he said he would “probably have to say yes”. He said he would use “a couple of grams” each week during this period, but he did not use it “that often”. GLG was further asked about his triggers for using illicit cannabis and why he used cannabis one day and not the next. In response, he said had to “admit” that he had used cannabis daily during the period since his offending in 2019 until his prescription in December 2021. The Department submitted that in their view, GLG’s admissions to using illicit cannabis after his 2019 offending reflect adversely on his willingness to seek appropriate and lawful treatment for his health and suggests the penalty imposed did not deter him from further offending.

7. Further, given GLG’s use of illicit cannabis over a period of time, the Department holds concerns about his ability to abstain from illicit cannabis use in the future. Indeed, GLG was asked in cross-examination what he would do if he was tempted to use illicit cannabis again in the future. In response, he said, if the situation presented itself, he would “probably use it". In the Departments view, GLG’s attitude towards illicit cannabis use raises concerns about his respect for the law and lawful behaviour, see IHI above, and his appreciation of the risks associated with illicit cannabis use and its impact on a person’s ability to care for children. It has been stated by the Tribunal that:[27] It can be harmful for children to become aware people they respect don’t obey the law because it creates confusion for them as they try to develop a sense of right and wrong. In the Departments view, the above matters are inconsistent with a finding that it is in the best interests of children/young people for GLG to be issued a blue card.

   [27]CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 [67].

8. The Department noted that GLG had filed a letter from Ronnie Varkey, nurse practitioner, together with a health summary sheet, relating to his prescription for medicinal cannabis. They indicate GLG is prescribed medicinal cannabis to manage the physical symptoms he suffers as a result of his diagnosis and treatment of throat cancer. The sheet also indicates GLG’s script was issued on 29 November 2021 and that he is prescribed:

   (a)>98% THC total cannabinoid to be take 2g daily m.d.u., and

   (b)THC 790 to be taken 1g daily m.d.u.

   At the hearing, GLG said he is prescribed medicinal cannabis by Dr Van Dijk and that his prescription is for cannabis oil and flowers. He indicated that the THC is the main psychoactive compound in cannabis and is what gives him the feeling of a “high”. He said he uses the medicinal cannabis for the cramps he suffers and for its sedative effect, indicating that the medicinal cannabis made him feel “sleepy”. He said he had been advised not to drive or operate machinery while using medicinal cannabis, but is otherwise not aware of any other limitations that apply. GLG was asked in cross-examination if the medicinal cannabis impacted his thinking or cognition. In response, he indicated he did not know, but did not think so “too much”. I note that there were no medical witnesses available for the hearing.

9. In the Departments view, and in the absence of further medical evidence, the above matters raise questions about the impact (if any) of GLG’s use of medicinal cannabis on his ability to provide a safe and protective environment to children and young people. Questions surrounding of THC/medicinal cannabis were recently considered the impact of, and risk associated with, caring for children and young people while under the influence by the Tribunal in ED[28] and RWH.[29] Indeed

   (a)In ED at para [100], the Tribunal observed that:

   “ED’s use of THC is likely to affect ED’s ability to care for children in her care, particularly young children with special needs or difficult behaviour.. the side effects of using THC include tiredness and impaired cognition for the sedative effect.

   (b)In RWH at para [147] and [163], the Tribunal observed that:

   That the frequent user of medicinal cannabis can provide a protective environment for children whilst under the influence of this drug is untested.

   The [applicant] has ongoing health concerns which affect his ability to provide consistent care and protection for children… Both drugs [the applicant was allegedly prescribed] impair capacity; to drive at the very least.. Children require the adult caring for them to be always present and available.

   [28]ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102.

   [29]RWH v Director-General, Department of Justice and Attorney-General [2021] QCAT 407.

10. In terms of the paramount principle the Department noted that GLG contends that not having a blue card means that he is unable to assist in providing kinship care to his partner’s grandchildren. The Department submitted that such considerations are not relevant in determining whether GLG’s case is an exceptional case. Given the paramount principle such considerations must “yield” to the consideration of whether GLG 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 him as a result of not obtaining a blue card is of no relevance.[30] Similarly, any benefit to children form having access to GLG’s skills or “flair in working with children” is not relevant if it is not in the best interest of children for GLG to be issued with a blue card.[31]

    [30]Chief Executive Officer, Department of Child Protection v Scott [No 2] WASCA 171, Buss J at [109].

    [31]Grindrod v Chief Executive Officer, Department of Community Development [2008] WASAT 289 [33].

11. The Department submitted that the material before the Tribunal and evidence at the hearing raises concerns about GLG’s insight. In particular, his evidence at the hearing did not demonstrate that he appreciated the consequences of his actions on others or that he was aware of, and understood, the risks associated with illicit cannabis use – or how such use may impact a person’s ability to care for children in his care. In the Departments view, the above matters suggest a lack of insight on the part of GLG. The importance of an applicant possessing insight as a protective factor was noted by the Children’s Services Tribunal in Re TAA:[32]

    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 re-offend 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 around them having insight into their actions and the likely effect on children.

    [32][2006] QCST 11.

12. GLG in his submissions stated that he acknowledges and am aware that previously dealing and using drugs was illegal and not acceptable to society and he recognises that exposing children to drug use or being affected by drugs whilst caring for children is unacceptable and likely damaging for the upbringing of young people. I note that GLG has gone to lengths to ensure that drugs and drug paraphernalia were secure from children. His evidence and that of his wife, Ms Von Banchat, was that he was using marijuana to assist him with sleep. At the hearing he agreed that he would use marijuana socially and that if he was in a position where there weren’t children present even now, he would use it in a social situation. One of his witnesses Ms Mortimer also confirmed that she had seen him smoke a joint in a social situation when there were no children around. In his post hearing submissions GLG described his convictions in 2019 as minor and victimless crimes.

13. GLG referees generally acknowledged that he used marijuana to assist him to deal with the after effects of his cancer treatment and described him as honest, trustworthy, kind, caring and respectful of other people and had no issues with him in terms of him being a risk in his dealing with children.

14. The Department notes the character references filed by GLG in support of his application. Whilst the Department acknowledged the positive comments made by the character witnesses, some of the witnesses were not available for cross-examination at the hearing, many of the witnesses who were available also had a limited understanding of GLG’s past offending (including the previous conviction for supply), and some witnesses expressed views that raised concerns. As to this last point for instance, one of the witnesses expressed the view that GLG’s use of cannabis has no effect on his ability to care for children – yet acknowledged they had never seen GLG under the influence of cannabis. The Department submitted that the weight to be afforded to the evidence of GLG’s character witnesses should take the above matters into account. The statements of witnesses not made available for cross-examination should be given less weight.

15. The Department submitted that the effect of issuing GLG with 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 Act, not just for the purpose for which he has sought the card. If issued with a blue card, GLG could work with children of any age, gender or vulnerability. The Tribunal has no power to use a conditional card and once issued, a blue card is unconditional and fully transferrable across all areas of regulated employment and business.

16. The Department acknowledged that there are a number of competing human rights relevant to the decision before the Tribunal. These include the human rights of GLG, such as his right to privacy and reputation (HR Act s 25), right to take part in public life (HR Act s 23), right to further vocational education and training (HR Act s 36(2) and his cultural rights (HR Act ss 27-28). There are also the human rights of children, specifically the right of every child to “to the protection that is needed by the child, and is in the child’s best interests, because of being a child”, as provided for in s 26(2) of the HR Act. The Department submits, however, that a decision that GLG’s case is an exceptional case will be nevertheless compatible with human rights. This is because, despite any limit the decision places on his human rights, the decision will be justified by the factors outlined under s 13 of the HR Act. The decision will be justified, because it 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. Furthermore, any limitation on GLG’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.

17. The Department submitted that the decision before the Tribunal is not whether GLG can be a kinship carer to his grandchildren. The decision before the Tribunal is whether, having regard to the paramount principle under the WWC Act, GLG’s 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 Department submitted that the object of the WWC Act and the principle that the welfare and best interests of a child are paramount support a precautionary approach to decision making in child-related employment matters. Overall, the material before the Tribunal raises concerns about GLG’s ability to abstain from illicit substance use and raises concerns about his ability to provide a protective environment to children and young people. Further, despite the passage of time since some of his offending, the evidence suggests GLG continues to demonstrate limited insight into his actions and their impact on others. A blue card is unconditional and fully transferrable. The holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities. The Department submits that the Tribunal must consider transferability of notices under the WWC Act when having regard to the best interests of children. The Department submits that the Tribunal should find that this case is an exceptional case such that it would not be in the best interests of children and young people for GLG to be issued with a blue card.

Discussion

1. GLG has convictions for drug related offences over the period from 1977 to 2019 including in 1988. The question for the Tribunal is whether based on the evidence accepted by the Tribunal on the balance of probabilities having regard to the consequences is GLG case an exceptional one where it is not in the best interests of children for him to hold a blue card. There are two aspects whether his offending and propensity to continue offending shows that he has a disregard for the law which of itself is not in the best interests of children and two whether his offending results in him not being able to provide a safe environment for children.

2. GLG and his witnesses in their material maintained that his use of cannabis was for the purpose of relieving the effects of thyroid cancer treatment from 2014. There is sufficient evidence in terms of an oncologist report to prove that he had thyroid cancer and a nurse practitioner report to show that the treatment of the after effects in 2021 was through prescribed medicinal cannabis using THC flowers and oil. At the time of his charges in 2019, GLG had grown his own cannabis which he was using to self-medicate. He maintained in his material that he only used it for that purpose, and this was supported by his wife and other witnesses. At the hearing though it was clear that he had used cannabis socially for many years except when he was unable to due to working in such places as mines. He also admitted that he had continued to use cannabis illegally after the 2019 offences until he was prescribed medicinal cannabis. He also admitted that if he was offered it in a social setting now, he would smoke it.

3. While in his material GLG showed some insight into the effects of cannabis acknowledging that that his previous dealing and using drugs was illegal and not acceptable to society and he recognises that exposing children to drug use or being affected by drugs is unacceptable and likely damaging for the upbringing of young children in his submission he minimised the offences in 2019 as minor and victimless crimes. GLG maintains that he is a law-abiding citizen and that is supported by his witnesses while that may be the case generally it is clearly not in regard to drug offences as despite having being convicted of them on multiple occasions he minimises them and would continue to use illicit substances. The importance of children knowing that the people providing care to them respect the law has been set out above and I am satisfied in regard to the use of drugs that GLG does not have an appropriate respect for the law.

4. The Tribunal has clearly accepted that use of illicit drugs by persons providing care to children is not conducive to them providing a safe environment for children in their care. The question of whether or not the use of medicinal cannabis based on THC also has the same consequences has not been tested as shown above, I note and it is accepted by GLG that he is unable to drive for a period of time after he has used the medicinal cannabis as it has the same effect as driving drunk and is subject to the same drug driving regime as illicit cannabis. This would tend to indicate that the effects are the same and that the providing of care by someone who was under the effects of medicinal cannabis would be the same as care being provided by someone who was under the influence of alcohol.

5. Having regard to the principle that the welfare and best interests of children are paramount, the Department submitted that a precautionary approach should be taken in decisions in this jurisdiction and that the consequences to GLG are not relevant in the making of the decision. I acknowledge that at the time of the negative notice GLG and his wife were providing care to her grandchildren and that as a result of the issue of the negative notice this was no longer possible. The Tribunal must though consider the overall question of whether this is an exceptional case where it is not in the best interests of children for GLG to be issued a blue card.

1. GLG continues to use cannabis daily which is now prescribed this does not though change the impact of that drug on his ability to provide a safe environment for the care of children. He also has made it clear that if the right circumstances arose, he would use the illicit cannabis in a social setting. Taking a precautionary approach, I accept that GLG’s continued use of cannabis affects his ability to provide a safe environment for children in his care and compromises the welfare and best interests of children generally. His attitude towards the use of illicit cannabis as being a minor and victimless offence is also inappropriate as it minimises the negative impact of the user of cannabis providing care to children and highlights a concerning attitude to the law which is not in the best interest of children.

2. In terms of the HR Act clearly GLG’s rights have been compromised here the Tribunal has though been required to consider the rights of children and having regard to the paramount principle it is the rights of children which must take precedence and in this case the Tribunal has been satisfied that 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” must take precedence of the rights of GLG which have been discussed above.

3. I am therefore satisfied that this is an exceptional case where it is not in the best interests of children for GLG to be issued with a blue card. The decision of the Department is confirmed.

4. As there are children who are subject to orders under the Child Protection Act1999 (Qld) who may be identified by these reasons and the file general the material in the file and these reasons except in a deidentified form will be subject to a non-publication order under s 66(1) of the QCAT Act as required by s 189 of the Child Protection Act1999 (Qld).