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

[2021] QCAT 206

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL  

CITATION:

IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206

PARTIES:

IHI

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML353-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

25 May 2021

HEARING DATE:

26 November 2020

HEARD AT:

Cairns

DECISION OF:

Member Kent

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General that IHI’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

2.   The Tribunal prohibits the publication of the names of the Applicant, any non-expert witnesses and the names of any victims, alleged victims, children or third parties referred to in the filed material and at the hearings.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – whether exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 221, s 226, s 358

Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492
Re FAA [2006] QCST 15
GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113

APPEARANCES & REPRESENTATION:
Applicant:	Self represented
Respondent:	G Carringtom

REASONS FOR DECISION

1. This application was determined by me as directed by the President of the Queensland Civil and Administrative Tribunal pursuant to s 168(1) of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’) having regard to the decisions and records of proceedings of the Tribunal as previously constituted.

2. This matter was originally listed for hearing on  28 September 2020. On that date the applicant indicated that she had not been able to prepare properly  for the matter and that she wanted an adjournment. It is noted that final directions for this matter were issued in January 2020 and yet  by the September of that year  the applicant said she was still not ready.  However, an adjournment was granted, and the matter ultimately was heard  on  26 November 2020.

3. At the conclusion of the hearing on 26 November 2020 the applicant and the respondent were given the opportunity to file written submissions. The applicant did not comply with the due date of the submissions and applied for an extension of time to file. On 22 February 2021 the Tribunal issued directions granting the applicant an extension of time until 19 March 2021  to file submissions. The applicant did not comply with this direction and there were no further submissions forthcoming. As a result of this the respondent was unable to comply with the filing of further written submissions as they had received nothing from the applicant.

4. Upon the reconstitution of the Tribunal by the President of the Queensland Civil and Administrative Tribunal further directions were issued to the applicant granting her an opportunity to make submissions in relation to this matter. The applicant neither attended the directions hearing where these directions were issued (despite having been sent a notice of these proceedings) nor did she respond and file any further material as a result of being afforded this opportunity by the Tribunal to do so.

   Decision under review

5. This matter concerns a decision by the Director-General, Department of Justice and Attorney-General (hereafter ‘Blue Card’), dated 13 August 2019, to cancel the applicant’s positive  notice and issue a negative notice. IHI had been issued with a Blue Card on 29 April 2017. In 2018 the Queensland Police Service (Police) notified Blue Card of a change in the applicant’s criminal history. After this the respondent cancelled the applicant’s positive notice and issued a negative notice (13 August 2020).

6. IHI had applied for a Blue Card based on it being a requirement for employment and for eligibility to be a kinship carer.

7. As part of their application processing Blue Card Services undertook a criminal history check in relation to IHI. This check and previous information from the Police disclosed the following criminal history:

   Convictions

   (a)Hobart Children’s Court 27 April 1988 - burglary and stealing, declared a Ward of the State;

   (b)Hobart Children's Court 8 December 1999 - in a bar underage, false name, age, address - fined $20 and a conviction recorded;

   (c)Hobart Children's Court 18 April 1990 - possess prohibited substance (cannabis) - admonished and discharged;

   (d)Atherton Magistrates Court 21 January 2014 - contravening direction or requirement (on 23 December 2013) - no conviction recorded, fined $300;

   (e)Townsville Magistrates Court 26 June 2015 - contravene direction or requirement (on 19 May 2015) - no conviction recorded, fined $200;

   (f)Cairns Magistrates Court 23 February 2018 - possess dangerous drugs (on 2 February 2018), possess utensils or pipes etc that have been used (on 2 February 2018) and possessing property suspected of having been used in connection with the commission of a drug offence (on 2 February 2018) - no conviction recorded and fined $500.

   Domestic Violence

   (g)Applicant named as the respondent in a Domestic Violence Order 2014.

   Queensland Driving and Non-Transport Operations (Road Use Management) Act 1995 (Qld) history

   (h)Between the years 2004 and 2017 this history lists a total of 23 infringements and one disqualification of her driver’s licence.

1. Ultimately it was the decision of the Director of Blue Card Services that the best interests of children would not be served if the applicant was granted a Blue Card at the time the decision was made. Reasons given for this included that the applicant had a previous history of drug use including using cannabis to self-medicate. It was stated that Blue Card’s role was not to impose additional punishment upon the applicant but to focus on the best interests of children.

   The ‘Blue Card’ legislative framework

2. Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’ or ‘Working with Children Act’). The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.

   [1]Working with Children Act, s 5.

3. A child-related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.

   [2]‘Child-related employment decision’ is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358.

   [3]Working with Children Act, s 360. See also s 6.

4. As applicable to this case, the Act requires that a Blue Card must be issued unless the Chief Executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a Blue Card to be issued.[4]

   [4]Working with Children Act, s 221.

   What is meant by ‘exceptional case’?

5. What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]

   [5]Re FAA [2006] QCST 15, [22].

6. Section 226(2) of the Act sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]

   (a)Whether it is a conviction or charge;

   (b)Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;

   (c)When the offence was committed;

   (d)The nature of the offence and its relevance to employment that may involve children; and

   (e)In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.

   [6]Working with Children Act, s 226(2)(a).

7. Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]

   [7]Working with Children Act, s 226(2)(f).

8. The application of the Act is intended to put boundaries around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]

   The applicant’s evidence and submissions - Discussion

   [8]Re FAA [2006] QCST 15, [29], citing the second reading speech of the Commissioner for Children and Young People Bill, p 4391.

1. IHI’s evidence was oral. She provided her life story to the Tribunal via an audio recording. She stated that she was unable to provide a written document as it was too triggering and stressful for her. Blue Card provided a transcription of this audio recording, however the applicant had complained that it was not accurate. Blue Card then provided the applicant with  a copy of the transcript in a format that would allow her to correct or amend what she saw to be the inaccuracies. The applicant did not supply either the respondent or the Tribunal with an amended transcript.

   Applicant’s Evidence

2. The applicant filed in the Tribunal a life story and five references and a psychologist’s report.

   Early offending and drug use

3. Under cross examination  the applicant said that she was aware of the concerns Blue Card based their decision to not grant her a positive notice upon.  She said that she had put her hand up to the use of utensils for the purpose of using prohibited substances or illegal substances. She understood why the court outcome was of concern to Blue Card. The applicant had not responded to Blue Card’s original requests that she provide submissions  about why her Blue Card should not be cancelled due to not having seen the  paperwork.

4. The applicant  described the incident of  being charged with dangerous drugs and utensils as a bit undesirable to say the least. The applicant admitted that she lied to the police in the court relating to the marijuana charge. Her excuse was that the drugs and utensils belonged to her son. She described herself as a protective mother and said that unfortunately she made a mistake of being dishonest. She said her mistake also included   breaching Blue Card processes. She originally said that she had notified Blue Card of her conviction but then she said that was wrong and that it was the police that told Blue Card.

5. IHI said the last time she used marijuana was possibly New Year's Eve in 2017. It was the applicant’s evidence that a cigarette was given to her and unbeknown to her it was a joint. The applicant described herself as  absolutely against drug use. Regarding alcohol she said that she has a glass of wine every now and then.

   Custody of daughters, substance use (including alcohol) and mental health

   Custody

6. The applicant was cross examined about the time that she lost custody of her children in Tasmania.  She said that happened in 1993/1994. She had been living with her two daughters and she had a relationship breakdown. She said her father, who had been her abuser, was stalking her. She decided to go back to Sydney for a period of time to locate her birth mother. She described this as being for healing purposes. When she returned from New South Wales her ex-partner and his family were granted custody of the children. She said she had no support network at that time and she went to live at a crisis shelter. She described this time as  a trigger point for her. Later IHI reached a mutual agreement with her ex-husband and she then had the girls regularly for visits and is still in contact with them today. She agreed that they had never been fully returned to her care but that she had chosen this for their stability and welfare.

   Drug Use

7. IHI stated to the Tribunal that when she lost custody of her girls she fell into depression. During that time the applicant was using marijuana, speed, acid and drinking heavily.  She was a lost soul and she felt like a good girl in a very bad situation. The applicant described herself as not knowing what to do apart from turn to substances to escape her reality. In her evidence the applicant stated that she came out of this period through self-talk and she found her strength. She managed to get back on her feet. She had peers telling her she would not get off drugs, but those comments gave her motivation.  She was also motivated by love for her children. She pursued her education.

8. IHI fell pregnant with her third child in 1996 and said she felt like she had a new lease on life. When asked if she considered that she was addicted to drugs at that time the applicant said, “I would say it was an addiction but I would also say I didn't need to be there and my headspace was not one of an addictive person.”

   Alcohol

9. The applicant said that more than addiction her alcohol use was an escape from reality. It was put to IHI that she had already told the then presiding member that alcohol had not been a problem for her. Under cross examination she agreed that it was a problem for her at that time. Upon reflection on her response to the presiding member it was IHI’s view that she should have said she did have a problem back then but it's not something she has  carried with her through her life. She did not elaborate on why she had given the  presiding member  the answer that she did.

   Mental Health and Substances

10. The applicant’s son was gaoled at 15 years of age. She described this as a crisis point for her. At that time, she had been  focused on her business and felt that she had let her son down. She ruminated on the idea she had been a bad mother and she had been unaware that her son had been truant from his high school for 80 days. When he was sent to gaol, she had a crisis and felt sad for the loss of her son. IHI took time off work and regathered herself. She denied going back to substance abuse. The applicant referred to another bout of depression which she experienced when her Blue Card was cancelled. She said she had no substance abuse or heavy drinking at that time and her doctor was very concerned about her and prescribed diazepam. She was in crisis as she was very passionate about her job and she needed a Blue Card to continue in this employment. IHI’s brother had died in 2019 and she felt that she had a crisis at this point then as well.

11. The applicant was cross examined on the statement she made in the recording of her life story that if she did not get a positive outcome for her review she did not have a back-up plan and she thought that she would go into crisis. The applicant said that doing the life story amplified everything for her and that she was sure that a negative outcome to this review would not trigger another crisis for her despite her having said that this would occur.

12. When asked how she dealt with periods of stress the applicant said that she talked to a good friend of hers who she had known for over 20 years. She supported herself, she also had the support of fellow workers and she now had access to her grandchildren unsupervised. Additionally, she talked to a GP about emotions. When she had worked in an organisation that dealt with children, if she had any problems or concerns they were discussed with her colleagues. If she felt that the situation was overwhelming her when she was doing that work, she would ask for a break from the situation. She thought that she had worked with a good team.

    Department of Child Safety (as it then was) material

13. In this material reference was made to an argument between herself and another person when the children were at home. It was at a time when she was living in Tasmania and an argument had broken out. IHI  felt that her daughter was very abusive towards her. IHI  said she could not remember the actual incident. It stated in the Notice to Produce material that one of her children appeared to be physically upset by this argument. The applicant said she was not sure who that was but if it was her youngest, he suffered from a medical condition and he was a very sensitive boy.

    Atherton Magistrates Court – Domestic violence

14. The material from the Atherton Magistrates Court involved a domestic violence order in which the applicant is named as the respondent.  She described the details of this as being that she had been in a relationship and on that night, she had found herself drinking. She claimed that her then partner was under the influence of  medication but also the drug ice. They had an argument over the applicant wanting to leave the relationship. A neighbour came over during what the applicant  described as a heightened discussion. IHI said that she  had thrown her CD cabinet or pushed it over. When the police arrived, IHI  was taken to the police station. She reported that she was released from the police station at 2:00 a.m. while she was still intoxicated. She  said that she had to walk back to Atherton which took her until five or six in the morning. It was her evidence that she then left her then partner’s premises with her belongings and never went back. After this event she was living in a women’s shelter. She denied  that alcohol was any concern for her during this period of her life despite her self-describing as being intoxicated at the time of this incident and  several hours later upon her release from police custody. She denied aspects of the version of events including that she threw stools.

15. It was put to the applicant that she had said that at that point she felt defeated, but  then felt a strong desire to continue her life. She denied that she was suicidal. The applicant said as she had cancer at a young age she valued life, and  she did not have suicidal tendencies. She thought the last time that would have happened was when she was in the welfare system as a teenager. She said that around February 2020 she felt a positive shift occur and she used her GP, her counsellor, her friends, and family for support. The applicant did not elaborate on the cause or form of this positive shift.

16. The applicant said that when she was diagnosed with cancer, she had used marijuana, by eating it, as a form of  pain relief. She said she had minimal use of the drug since 1993/1994 and then when she was 27 and suffering from cancer, she had used marijuana on a small number of occasions to help with her nausea. She considered that medical marijuana use was legitimate after having read about that. At the time that she was using the cannabis for her medicinal needs she had her sons with her.  Family and friends were helping her to care for her  because she was too ill  due to her cancer diagnosis. She felt that had she been under the influence of cannabis her sons would not have noticed as she was very sick and bedridden from her illness so they would have just assumed it was her illness if she was affected by the drug. She now would not use cannabis, even for medicinal purposes, without a doctor’s prescription. She said this was because  she knew  the severity of the outcome for use. She had  learned this  from  putting her hand up to possessing  a bong,  a bowl and a pair of scissors. She said that due to this  she was in a Tribunal hearing  and it had caused all of the trial, tribulation and trauma.  It made her aware that drug use is  a very serious matter. The then presiding member advised the applicant  at the hearing that as she had entered a plea of guilty to her previous charges, including the  most recent drug charge, then  that had to be accepted by the Tribunal. The applicant acknowledged this information.

1. In cross examination  IHI was referred to the events in 2015 where she was convicted of contravening a direction or  order. She agreed  that she was back at her ex partner’s place and the police had come to do a search of the property. IHI  had originally told the Tribunal that she had left her ex-partner in  2014, prior to the protection order being put in place, and had never returned. She admitted this was incorrect as she was there  in 2015. When challenged  on this IHI  said she was not  sure why she was there but her car was packed full of her stuff. The police then searched her ex partner's place.  When she was asked about the details of the offence IHI said she did not know anything about it, she was sorry, but she could not remember that. IHI denied using drugs at the time. It was the applicant’s evidence that  she was a swimming teacher and therefore would not be using drugs while  holding down that job. IHI could not explain why she was at her ex partner’s  because she did have a Domestic Violence Order  placed on her. Her  ex-partner was the  aggrieved in that  order.  The applicant repeated that she did not recall the events.

2. The applicant was cross examined on the events of 2018, the conviction for possessing cannabis and the related utensils. She said the police came to her house and they asked her if her son was present at the address and she said no because he was not. They then undertook a search and found a bong, a bowl and a pair of scissors. She said the police said they could  smell marijuana. She said she told the police her grandmother had just passed and it was something she did not regularly do. She said she  “took the rap for it”. She said that she could not  even remember  the story she told the police but at the end of the day she put a hand up for it and she attended court. It was put to IHI that in the oral submission she gave to the Blue Card officer she did not raise that the cannabis was not  hers and she did not mention it. IHI said she had not done that because she knew she had put a hand up for it as she described.

3. She was further cross-examined about  a letter she provided to the Tribunal where the applicant said that when she was found with the cannabis she had taken a little bit after unsuccessfully trying to get an appointment to see a health practitioner  and  after the weekend she had  stupidly self-medicated. This version  was the story that was provided to the Tribunal after she was convicted, and IHI admitted this was a lie. She said that she decided to tell the truth after speaking with her counsellor and speaking with her best friend.

4. When asked about the last time she had used drugs IHI said it was New Year’s Eve 2017. It was then pointed out that she stated that she had ceased to smoke cannabis completely at an earlier date.  IHI  agreed that was incorrect and that she had given the police and the court dishonest information and lied to them. It was put to the applicant why was it that she thought that the Tribunal should believe her when she had lied to a court and to the police. She said because I'm telling you the truth now. She said she was dishonest then but not now.

5. The applicant’s support network was described as her friends. She has a rapport with her mother, sister and daughters. Her network included her colleagues at work, her colleagues from her previous workplaces. She now works in the community as a volunteer. IHI said that she supports her son who was still in prison and he supports her too; even though he's incarcerated, he's very strong.

6. When asked about her recovery from depression the applicant said that she had not ever had any formal support in relation to her anxiety and depression but from training she had received at work she had been able to gain perspective and skills and tools to use. She described some of these tools as listening actively, speaking up, speaking out and meditating. IHI also said that she knew that she could gain an education and to seek opportunities where she could find them. Some examples of her acquired skills were that when she came home from a hard day she would listen to some music, eat good food, regularly exercise, and swim, etc. She had a healthy balance between work and life. It was her experience that every time she has  gone back into crisis it is not as bad as the last time to the point where a crisis for her now is not what it used to be say 20 years ago.

7. When asked to comment on her strengths the applicant said that she had a good sense of humour and a great positive outlook.  She described  a weakness as probably not being able to say no  and doing too much in terms of other people. She said when that  happened she was withdrawing from the Bank of IHI rather than making deposits.

8. IHI  is motivated to obtain a Blue Card because her grandchildren had gone into care and it came to light that she needed a Blue Card to have kinship care. That was the main reason she was continuing to pursue this matter. She described the review process  as a daunting, intimidating journey and as crippling as it was  for her anxiety she said her goal is to have a family connection.

9. The applicant wished to continue as a swimming teacher as her eldest brother had drowned at 11 months and she was passionate to make sure that people knew how to swim.

   Witness – friend CC

10. CC said that she had not read the reasons from Blue Card but that the applicant talked  to her over the telephone about them. It  was her view that the applicant did not have a criminal history just some misdemeanours when she was young and what was described as the event with her son. CC said it was unfortunate that things that happened when IHI  was a teenager were being brought up. She had known the applicant since 1996.  She was aware of the applicant's use of marijuana when IHI  had cancer.  She described the applicant as an amazing person who had been through a lot and that she had a very kind heart. She said she talked daily with her friend and she found it to be a very good support for her. CC was aware  that in the past her friend had to seek counselling  and that she had  been put on Valium but that was only for a short period of time.  She thought  talking with the applicant’s counsellor had helped IHI get over the last major hump in the applicant’s life.

    Witness – work colleague AA

11. AA had known the applicant since June or July 2019.  He said that he could not  remember if he had read the reasons from Blue Card. He then said that he had read the reasons. When asked what was his understanding of why the applicant had been issued with a negative notice he said it was apparently to do with two utensils for marijuana and a criminal history due to a court appearance regarding that charge. AA was asked about  his knowledge of IHI’s history and he said there was some stuff in 1980. He described it  as being a few things but he did not really read it in detail.

12. During the time he had known her, he had not  found IHI to use drugs. In his opinion she was a safe person in the community and  within her own home. He had come to this assessment through working together as colleagues. He said that on a personal level he had seen her drink alcohol but only  occasionally because they did not spend all their time together. When asked what she was like with children in the employment they worked together in, he said very passionate; sometimes she would get too involved and overwhelmed but she expressed that this was due to her own past being in care. He said when she was overwhelmed, she would say it was because she's very connected to the children and she was a caring person. He thought that she managed this quite well by asking to “go and have a breather”. AA considered her to also be a very good worker with vulnerable adults. He said she was  very dedicated and very safe in this employment. He had no doubts about employing her at all and he had full confidence in her. When asked if he had known what went on with her charge, he said no; all she said was there is a bowl and scissors and utensils, and they weren't even hers - she took the blame for her son. AA said that he told her that she had to let people deal with something themselves and she is  now fully aware of the repercussions but she is a beautiful character.

    Dr Geoff Nelson

13. Dr Nelson is a clinical psychologist and he had worked in a clinic in Queensland. He was now working in Western Australia.  He had seven sessions with the applicant in his clinic and one over the telephone. In October 2019 the applicant was distressed and anxious due to have to write a life story for the review that she had commenced. Dr Nelson assisted her to prepare her life story and he said that he had read the reasons for the negative notice from Blue Card. It was his understanding that the negative notice was issued because there was a perception that the applicant had a long-term drug history and that might render her unfit to work with children and young people.

14. When asked about how he had made the assessment that the applicant was not a chronic substance user Dr Nelson outlined that 80% of his work was with people in the justice system and 75% of those were long term drug or alcohol users. He said through his conversations with IHI he was convinced that she was not using drugs or alcohol at a dangerous level. He had no indication she was using at any level when he saw her and that was confirmed for him by a Dr Pedersen. His understanding of the last time that the applicant had used drugs was when she was a much younger person and long before she was even in Queensland.

15. He was asked if he had recalled viewing the applicant's application to the Tribunal and the letter, he had been provided with that and he said no he had not. He said that the applicant had put her hand up and took ownership of the utensils so her son would not be breached on parole or probation. He did not believe that she was self-medicating at the time of that offence. He was cross examined about his belief that the applicant’s actions did not have any direct negative effect on her clients or society at large (the actions  were her taking ownership of the material that was not hers). He was asked about the applicant’s insight into her drug use. His reply was that she was not using drugs at the time. He described her past usage as being thatshe only used in difficult stages of her life to numb herself. He was asked about her risk factors and triggers and he said that the applicant would be unlikely to contravene community expectations or professional boundaries again. She has had to endure the consequences of her deception for the past two years and she is truly remorseful.

16. He did not believe there were triggers or risk factors.In part this was due to the nature of her employment where she is constantly reminded of the negative effects of illicit substances on other people. He was very comfortable with the fact that she rings him whenever she feels distressed and she has other people around her like her GP who understand her history. When talking about the offence in the audio recording (which the witness helped the applicant prepare) IHI said that she told police that she found a little bit of cannabis and did not know that it was. She then smoked it because she felt anxiety and she told police that she used it to help her anxiety.

    Statements provided by applicant

17. The applicant provided an audio recording, a letter with her application and gave oral evidence. She called her friend, her work colleague and Dr Nelson. The applicant also provided statements from five other people.

    (a).

    The respondent’s submissions

18. The respondent made submissions on the legal framework and relevant issues including that the tribunal must be guided by the principle under which the Act must be administered i.e. that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.

19. It was submitted that the term 'exceptional case' is not defined in the Act. 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.’[9]

    [9]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] (citing Kent v Wilson [2000] VSC 98, [22]) (emphasis added).

20. Further reference was made to section 226 of the Act in the context of a charge or a conviction as has occurred in this matter. This section does not present an exhaustive list of considerations. Here the applicant had convictions and a domestic violence order naming her as the respondent. The respondent submitted that the paramount principle should be used by the tribunal to inform the standard of proof required in decisions under the Act.

21. Essentially the respondent submits, given the paramount principle and the nature of decisions under the Act, that the gravity of the consequences for children is what is the important consideration i.e. that is, if a working with children clearance were to issue, what would be the potential consequences for children. Any consequences, in terms of prejudice or hardship to the applicant, are not relevant in child-related employment decisions. The potential consequences for children, however, of issuing a working with children clearance are significant and, as such, the Tribunal ought to require cogent evidence to establish, on the balance of probabilities, any facts asserted in favour of the applicant. This approach is consistent with the reasons outlined by the Appeal Tribunal in Masri.[10] In that case the QCAT Appeal Tribunal referenced the paramount principle in holding that this approach is consistent with the Briginshaw test and ought to be employed "bearing in mind the nature of the reviewable decision".[11]

    [10]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [54].

    [11]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [54].

22. The respondent made further submissions stating that the decision of Maher[12] is often cited in support of the proposition that the Tribunal is required to balance risk factors against protective factors in determining whether the applicant's case is an exceptional case. The respondent submitted that this interpretation is not correct. In Eales,[13] the Appeal 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 in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise ...

    At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person.

    ... No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording "unacceptable level of risk" was made by the Court of Appeal in the Maher case.

    [12]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

    [13]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[8].

23. Further, the respondent submits that adopting a "balancing" approach in child-related employment decisions 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 factors against, the applicant's case. The respondent submits that when considering the factors, the tribunal should take a qualitative rather than a quantitative approach. In the respondent's view, 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. Given that the welfare and best interests of children are paramount, in the respondent's view, the tribunal must apply additional weight to any risk factors that are established.

24. The respondent’s submissions on the Human Rights Act 2019 (Qld) ('HRA') were that when conducting a review of a child-related employment decision, the Tribunal is a 'public entity' under the HRA and, as such, the HRA applies. The respondent submitted that the decision that the applicant's case is an exceptional case will nevertheless be compatible with human rights. This is because despite any limitation the decision places on the applicant’s human rights the decision will be justified by the factors outlined in section 13 of the HRA. The decision will be justified on the basis it will have a proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which of itself is a human right.

25. It was submitted that looking at each of the relevant considerations, the Tribunal can be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that the applicant's case is an exceptional case in which it would not be in children’s best interests for the applicant to be issued with a working with children clearance and Blue Card.

    Transferability

26. Submissions under the heading of transferability centred on the fact that once granted a Blue Card, an applicant is able to work in any child related employment or conduct a child related business supervised or unsupervised as regulated by the Act and not just for the purpose for which the applicant sought the card. The tribunal  has no power to ensure a Blue Card is conditional. Once a Blue Card is issued it is fully transferable across all areas of regulated employment. It was submitted that the tribunal’s decision is not whether the applicant should be employed in her chosen job. The Tribunal’s decision is whether having regard to the paramount principle under the Act the applicant's case is an exceptional case in which it would not be in the best interests of children for her to be issued with a positive notice.  

    Conclusion to respondent’s submissions

27. It was submitted that the Tribunal’s decision is whether, having regard to the paramount principle under the Act, the applicant's case is an exceptional case in which it would not be in the best interests of children for IHI to be issued with a positive notice. The respondent submitted that the Tribunal  should take a precautionary approach to decision making in child-related employment matters.

    Findings

    The Human Rights Act 2019 (Qld)(HRA)

28. I find that as the commencement date of the HRA was 1 January 2020 and IHI’s review was commenced on 9 September 2019, the legislation has no applicability to this case. I have based this finding on the provisions of the HRA: section 108(2) of the HRA. However, if I am wrong about that issue, I accept the respondent’s submission that the decision that the applicant's case is an exceptional case is compatible with human rights. This is because despite any limitation that the decision places on the applicant’s human rights, the decision will be justified by the factors outlined in section 13 of the HRA. The decision will be justified on the basis it will have a proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which of itself is a human right.

    Considerations concerning risk factors

    was made by the Court of Appeal in the Maher case.

29. My approach was not simply a mathematical equation of risk versus protective factors.

1. The applicant said she accepts her behaviours, however she spent a considerable amount of time in both written and oral evidence describing her belief that she acted that way because of other events that were occurring in her life and/or  to protect her son. I do not accept these to be reasonable excuses for her criminal offending.  I find that her evidence about her offending was indicative of her lack of insight into the seriousness of her behaviour e.g. lying to the police and to the court. This type of behaviour impacts adversely on the justice system yet the applicant and her witnesses minimised the seriousness of her offending. The applicant appears to have no appreciation for the other possible criminal outcomes that may have followed from her admission that she lied to both the police and the Magistrates Court. If the version of events that she was covering for her son is actually the true one then  she has also defeated the purpose of her son’s probation or parole and the courts orders for her for her son.

2. The applicant's evidence about various events including her domestic violence event and then the subsequent charge relating to drugs was very vague and self-serving. The evidence that it is simply  too long ago or “I cannot remember” is insufficient in circumstances as serious as a review of issuing a negative notice for a Blue Card. It is not reasonable  for a Tribunal to be asked to decide to issue a positive notice to a person who states they cannot remember something they have been involved in that is criminal offending.

3. Regarding her domestic violence order naming her as the respondent the applicant expounded the views that she was not at fault but that it was her drug taking, mentally ill, violent ex-partner who was to blame. Whether that is true is not open to debate in this Tribunal. The Tribunal must accept that there had been an order made by a court of suitable jurisdiction for that matter. The Tribunal is not an appellate body for the Magistrates Court. In this review, based on the evidence before the Tribunal, the applicant appeared to lack an appreciation of the seriousness of the Domestic Violence Order naming  her as the respondent.  The applicant was also inconsistent in her evidence having said that in 2014, after that domestic violence event, she packed her car and left and never went back to her ex-partner’s place. Yet in 2015 when her offending occurred, she was at the ex-partner’s premises and when questioned about this she was evasive in her answers  and/or was unable to remember.

4. The applicant’s evidence  to the Tribunal was lacking in detail, evasive and at times contradictory. As a result of this diminished credibility less weight could be placed on the applicant's view of her improvement in lifestyle. The applicant  provided two different stories about her drug use to the police.  IHI also told different versions of her  relationship with alcohol  to the Tribunal  and then eventually corrected her version under cross examination. The applicant asked the Tribunal to believe that she was telling the truth at  the review hearing. The Tribunal and  respondent noted that  the applicant had ,it seems, no problem with lying to both the police and Magistrates Court in criminal proceedings. The enormity of this appears to have completely escaped the applicant's knowledge or understanding. She appeared to be lacking in a true appreciation of the seriousness of her offending in particular on her version of events.  On this version she lied to the police and by entering a plea of guilty she also lied  to the Magistrates Court. She appeared to exhibit either ignorance or  at worst wilful disregard for the justice system.

5. The applicant called three witnesses: her good friend, her work colleague, and  her psychologist. The applicant provided some other  witness statements. IHI commented that she  did not have enough time to organise witnesses to attend in person.  As pointed out in submissions by the respondent, the Tribunal directions of 30 January and 8 June 2020 provided the applicant with directions stating that all witnesses must attend the hearing in person for cross examination. Ultimately the  Tribunal hearing was not until 26 November 2020.  I accept the submission that the applicant should have been aware of the need to comply with the directions. Therefore, she was required to   produce the   witnesses  she was relying on for the purposes of cross examination. The weight that can be afforded to those references or statements provided by witnesses who were not made available for cross examination is limited.

6. The respondent submitted that the key issues were the applicant's drug use, her choice to self-medicate, her insight and consequently her credibility due  to the inconsistencies in her statement, and the history of domestic violence as included in the material from the then Department of Child Safety and the Atherton Magistrates Court.

7. The respondent submitted  that it is of significant concern that the applicant may not make appropriate behavioural choices when  managing different  types of stress. There was a concern that  she may return to the use of drugs. The applicant at times  confirmed her recent drug use and at other times denied  it e.g. saying the drugs were herson’s. IHI  said she had used in December 2017 but denied using in 2018. The applicant said that she left her ex-partner in April 2014 but then was with the same ex-partner in April 2015. The applicant  said that the  drugs referenced in her conviction for contravene direction or  requirement belonged to her ex-partner. That is not the basis that she was sentenced on  in the Magistrates Court for this offending.

8. I accept the submission  that the Tribunal cannot go behind the applicant’s convictions for these offences and therefore I take them into account. I agree with the respondent that the applicant's changing of her story raised concerns about her credibility and trustworthiness. The applicant said that the information that she told to the Tribunal in oral evidence was true. She gave evidence that the information that she  had provided to the police, court and  the Tribunal in her initial statement information were lies or incorrect. She changed her story upon submitting her audio recording and she said that she should be believed now because she was telling the truth. IHI did not say how she could support this assertion when she told the police and the  court that she was telling them the truth  as well.

9. After hearing IHI’s psychologist’s evidence I note that it was his opinion  that  IHI has made some commendable steps in her self-improvement. However, the  psychologist does not appear to know the full extent of IHI’s drug use. Dr Nelson reported that IHI had not used drugs since she was younger. He did not  know anything about her drug use in 2017. He indicated that if there was more recent drug use he would want to talk to his patient about that. I take this into account when considering what weight I may afford to his evidence. A major consideration on this point is that Dr Nelson was  not fully aware of all of the circumstances due to what appears to be the applicant not reporting this information to him.

10. When answering questions on the applicant’s insight, triggers and preventive strategies   Dr Nelson saw no need to elaborate on these topics as on his understanding the drugs  that were the subject of one of her convictions  were not hers but her son’s. Doctor Nelson said drug use was not a significant issue for IHI,  however he lacked  information about her drug use. Dr Nelson also opined that the applicant's historical drug use had been identified as a way of her trying to numb her feelings.

11. The other witnesses were very supportive of the applicant and said IHI was suitable to hold a Blue Card. To IHI’s credit both of the witnesses think highly of the applicant. That is something that is very commendable and in her favour. However one witness had not read the reasons statement from  Blue Card at  all and the other had not read it in detail. There was concern that both witnesses did not have full knowledge of the applicant’s criminal history and that what they did have originated  from the applicant’s  own self reporting. This in turn affected the weight that I could give to their evidence.

12. The Tribunal is not an appellate body for any of the sentencing courts that have dealt with the applicant. It is not appropriate for me to go behind those convictions and I accept on the balance of probabilities that the events of criminal offending that the applicant pleaded guilty to or was found guilty of are as they were described in either the police’s or court’s material.

13. The applicant also indicated that she was very motivated by her desire to be kinship carer for her grandchildren now they were in State care. She is  proud  of the fact that she now saw her grandchildren unsupervised.

14. The applicant said she had never sought formal treatment/programmes for her anxiety and depression but rather she had relied upon the training that she had gained in various workplaces to help her deal with these issues. She gave the examples of meditation and time out as tools she used to cope with her stress, anxiety and depression.

    The factors in s 226(2) of the Act are factors that must be considered in deciding whether it is an exceptional case.

15. I accept that in terms of the level of satisfaction required to meet section 221(2) of the Act, while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[14] I am aware that there is no power under the legislation for the Tribunal to issue a positive notice with conditions.

    [14] [2004] QCA 492, [30].

16. I refer to the following factors in my consideration of whether this is an exceptional case: factors which must be considered and factors I consider relevant. I make the following observations:

    Whether the offence is a conviction or a charge

    IHI’s criminal history contained Convictions:

    (a)Hobart Children’s Court 27 April 1988 - burglary and stealing, declared a Ward of the State;

    (b)Hobart Children's Court 8 December 1999 - in a bar underage, false name, age, address - fined $20 and a conviction recorded;

    (c)Hobart Children's Court 18 April 1990 - possess prohibited substance (cannabis) - admonished and discharged;

    (d)Atherton Magistrates Court 21 January 2014 - contravening direction or requirement (on 23 December 2013) - no conviction recorded, fined $300;

    (e)Townsville Magistrates Court 26 June 2015 - contravene direction or requirement (on 19 May 2015); no conviction recorded, fined $200;

    (f)Cairns Magistrates Court 23 February 2018 - possess dangerous drugs (on 2 February 2018), possess utensils or pipes etc that have been used (on 2 February 2018) and possessing property suspected of having been used in connection with the commission of a drug offence (on 2 February 2018) - no conviction recorded and fined $500.

    Queensland Driving and Non-Transport Operations (Road Use Management) Act 1995 (Qld) history

    (g)Between the years 2004 and 2017 this history lists a total of 23 infringements and one disqualification of her driver’s licence.

    (h)

    Domestic Violence:

    (i)Applicant was named as the respondent in a Domestic Violence Order 2014.

    Applicant’s evidence

17. The applicant’s version of events that led to her domestic violence order at times contradicted the material provided by both the police and the relevant Magistrates Court. Her evidence was at times inconsistent on these points and  under cross examination by the respondent the applicant indicated either confusion or deceit about her understanding of what she had said about her offending. An example was her evidence about the offence of  possessing utensils which she said belonged to her and then later changed her story to them belonging to  her son. I find on balance that IHI's conduct as set out in the Notice to Produce material (summarised in the statement of reasons from Blue Card) and the letter attached to her review application are the events that occurred.

18. IHI asserts that her relationship with her ex-partner was over in 2014 yet she agrees that she was at the premises of her ex-partner when she was charged with an offence in 2015. The applicant  sought to minimise her involvement by saying that it was the fault of her ex-partner. IHI  alleged that she could not  remember why she was at her ex-partner’s place  nor could she remember what had happened. The applicant gave evidence that she had packed up all of her belongings in her car in 2014 and immediately left yet she gave evidence that in 2015 her car was full of her belongings that she had removed from her ex-partner’s. These statements are inconsistent and only one example of a number of inconsistencies in IHI’s evidence that impacted on my ability to consider her evidence as credit worthy.

    Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence

19. The offences IHI was convicted of are not a serious or disqualifying offence within the meaning of the Queensland legislation.

    When the offence was committed or is alleged to have been committed

20. The offences by IHI range in date from 1988 to 2018.

    The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children.

21. The applicant has been found in possession of drugs in 2018. In 2015 she failed to attend a drug diversion course which was offered to her due to her having  been  found in possession of drugs and related utensils. IHI filed material which provided that between 2001/2002 she had used cannabis in the context of her being unwell with cancer. She said that she had also experimented with LSD and amphetamines as a young person. Blue Card   submitted that the applicant's drug history spans 28 years and it appears that the applicant has not fully disclosed all of this offending to both of her witnesses or her psychologist. This has impacted upon the reliability and relevance of their evidence to the issues to be decided.

22. In material filed in the  Tribunal as evidence to be relied upon  at the hearing  the applicant suggested she used cannabis to self-medicate. She then denied this in her evidence at the review hearing and she said that she was taking the blame for her son. I viewed Dr Nelson’s evidence through the lens of that inconsistency as it appears  the version of events she told him is not the same as  the one  she gave to the police and court at the time of sentencing and then to the Tribunal. Dr Nelson’s view was that IHI  did not need any preventative strategies to avoid future drug related offending as she had not really offended i.e. it was her son who had really offended. This also impacted on the amount of weight that could be given to Dr  Nelson's evidence.

23. In the past there was a pattern for the applicant to self-medicate her mental health conditions with illicit drugs. Although it does seem that IHI is certainly making improvements to her lifestyle and moving forward there is not any strong evidence as to how she manages future  stressors: will she  fall apart if  given a negative outcome in the review as she stated in her filed material in the  Tribunal?  Or will she do as she said at the hearing and talk to friends about it, meditate, contact her psychologist or remove herself from the situation by having a break? Not all these strategies are suitable in terms of having children under your care and control and leaving them perhaps unattended whilst you have a break or timeout or call someone.

24. It was submitted by the respondent that children have a right to be protected from exposure to drug involvement and be cared for by people who do not engage in drug related activities. It was noted that the applicant's continued drug offending up until 2018  would be likely to detract from her ability to provide a protective environment for children. IHI asks the Tribunal to accept  her statement that she had lied to the police, the court and to the  Tribunal via filed material.  Even if IHI  was not using  drugs when she was arrested in 2018, her behaviour, on her own preferred version, shows a serious lack of judgement and a serious lack of respect for the law. Any child being cared for by a person has a right to have someone who has a respect for the law and is aware of boundaries and is not prepared to cross these for their own needs e.g. to protect her son.

25. The applicant says she has taken steps to rehabilitate herself and now has better coping strategies.

26. The applicant’s evidence was that should she ever find herself in a stressful situation again she had new coping skills and she was unlikely to return to offending behaviours. Even if the applicant is not intending to be employed working with children, a Blue Card is fully transferable and therefore I must approach this on the basis as though at some time she may well have contact with children through her employment and it is on that basis that a blue card is required.

    In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision

    Only penalties were available and not the sentencing remarks

    Other relevant circumstances

27. While not  defined as  serious or   disqualifying under the Act the nature of the offending is not something to be trivialised. The applicant's evidence was that she did not use drugs in 2018 that were her son’s drugs. Even if this were true it shows that the applicant lied to a criminal court and then she expects the Tribunal to believe that she subsequently was telling the truth in evidence at the review hearing. It is difficult for me to accept  that she was telling the truth to the Tribunal, when by her own admission she had lied to police and a criminal court, entities  that are central to the administration of justice.  This, of itself, demonstrates a lack of insight into offending and an enormous lack of honesty on the part of the applicant. It simply did not seem to enter her consciousness that this behaviour  of itself was a very serious offence. Her comment was  “I should not have done that but I'm taking the responsibility for it now”. I refer to the  Notice to Produce material of the (then) Department of Child Safety, Youth and Women, the Atherton Magistrates Court and the Queensland Police Service. It is not for the Tribunal to go behind the fact of the convictions or orders  nor to accept a different version of events.

28. The applicant can be said to be developing insight and strategies to deal with times of crisis in her life. The full value of her health report from Dr Nelson was undermined by the fact that Dr Nelson was not aware of all of her criminal offending or her more recent drug use. This lowers the value  or weight that  I can place on this report and the evidence of Dr Nelson. As Dr Nelson  did not think that IHI had been using drugs recently he saw no need to talk about her triggers for such behaviour and therefore this was an area of evidence that went unaddressed by a formal health report or evidence of her psychologist. I appreciate the psychologist’s attempts and efforts to inform the Tribunal as an expert, however from the material before the Tribunal his testimony was of limited value. Dr Nelson had  seen the applicant six times and spoken to her once on the telephone. I do note that he was expecting them to have an ongoing professional relationship, probably via telephone given his relocation. Of concern is the fact that the applicant did not  inform her psychologist of all of her circumstances and as such the Tribunal could not place the same level of weight on Dr Nelson's evidence as it might have in circumstances where he was fully informed. It similarly impacted on  my ability to consider him to be a  strong support for the  applicant when it would appear that she is not  fully frank with him about her circumstances.

1. The applicant says she acknowledges his own behaviour; however, she did minimise some of her offending, dispute the  offending occurred in the same manner as she was sentenced on and also blamed an ex-partner for some offending.

2. The applicant says that she has developed insight; given the evidence, the inconsistencies and the variations in versions I am unable to find that the applicant has developed full insight into her offending. Nor have I been convinced that she has enough supports and safety measures to avoid her returning to use of drugs and breaking the law in times of what she describes as crisis.

3. Some of the offences occurred when IHI was very young and living in difficult circumstances. However, her offending has continued  up until 2018 even though she has  had an improvement in circumstances through education, employment and her own efforts. The applicant was either unable to or unwilling to provide the Tribunal with full information about the 2018 offence apart from to say she was telling the truth now.

4. I accept the respondent’s submissions concerning the object of the Act and the principle that the welfare and best interests of a child are paramount. I accept that this supports a precautionary approach to decision making regarding child related employment.

5. In considering whether this is an exceptional case I must determine the correct or preferable decision in the context of the paramountcy of the welfare and best interests of children.

6. I accept the transferable nature of a Blue Card once it is issued.

7. There is evidence that the applicant has made steps forward in her own personal development and was very well thought of as a worker in areas with children and vulnerable people; this is a factor in her favour. There was an absence of further evidence regarding the steps, treatment and programmes she has undertaken to address offending behaviour. In the circumstances the Tribunal cannot be satisfied that her offending behaviours are no longer a significant risk factor for IHI.

8. I am satisfied that this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to IHI.

   Non -publication order

9. The Tribunal may make such an order on its own initiative if satisfied that it is necessary for any of the reasons specified in the QCAT Act s 66(2). The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice. A non-publication order should be made in this instance to protect the identity of the applicant, her family, and any children and/or third parties named in the proceedings. The Tribunal prohibits the publication of the names of the Applicant, the names of any victim/alleged victim, children, third parties and any non-expert witnesses.[15]

   [15]       GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113.

   Orders

   1. The decision of the Director-General, Department of Justice and Attorney-General that IHI’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

   2.     The Tribunal prohibits the publication of the names of the applicant, the names of any victim/alleged victim, children, third parties and any non-expert witnesses.