Jansen v Director-General, Department of Justice and Attorney-General
[2018] QCAT 123
•23 April 2018
CITATION: | Jansen v Director-General, Department of Justice and Attorney-General [2018] QCAT 123 |
PARTIES: | Noesja Jansen |
| v | |
| Director-General, Department of Justice and Attorney-General (Respondent) | |
APPLICATION NUMBER: | CML224-17 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 29 March 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 23 April 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is ‘exceptional’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks a review of the decision to issue a negative notice – where previous criminal charges and convictions for drug use and driving without a licence – where applicant accepts the seriousness of the incidents and shows remorse – where steps have been taken with counselling – whether exceptional case exists – whether not in the best interests of children to issue a positive notice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 |
APPEARANCES: | |
APPLICANT: | In person |
RESPONDENT: | Represented by Ms S Jayatilaka In-house Solicitor |
REASONS FOR DECISION
Neosja Jansen had a positive notice and subsequent blue card issued to her on 5 June 2012. After notification of a change to her police information, the Acting Chief Executive Officer of the Public Safety Business Agency, asked Ms Jansen to provide submissions during a re-assessment of Ms Jansen’s eligibility to hold a blue card.
Ms Jansen provided submissions in support of her continued holding of a blue card, but on 23 August 2017, the delegate of the Director-General of the Department of Justice and Attorney-General decided to cancel the positive notice and issue a negative notice, also cancelling Ms Jansen’s existing blue card.
Ms Jansen has applied to QCAT to review this decision. QCAT can review a decision to issue a negative notice.[1] The review is conducted on the basis that the welfare and best interests of a child are paramount,[2] and is a fresh hearing of the case with the purpose of producing the correct and preferable decision on the evidence before the tribunal.[3]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act), s 354.
[2]Ibid s 6, s 360.
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 24.
The negative notice was issued because Ms Jansen had been convicted in January 2015 of being in charge of a vehicle under the influence of alcohol or a drug and failure to properly dispose of a needle and syringe (for which no conviction was recorded). In February 2015, Ms Jansen was further convicted for driving without a licence – a suspended licence.
The Police reported they found Ms Jansen asleep in her vehicle on the side of a road. The Police suspected that Ms Jansen was under the influence of a drug and noted the following in relation to her behaviour at the time:
· Her speech was slurred;
· She had trouble focussing;
· She was unsteady on her feet and was stumbling and swaying;
· She had difficulty articulating what she was trying to say; and
· Her eyes were bloodshot and she was blinking slowly.
Due to Ms Jansen's behaviour, the police conducted a search of her vehicle and located a clip seal bag containing needles.
Ms Jansen was transported to hospital and an analysis of her blood found a range of substances, including amphetamine, methyl amphetamine and other prescription drugs in her system.
Ms Jansen was studying to be a primary teacher and it is a requirement to progress these studies to hold a blue card.
Under the Working with Children Act, a positive notice must be issued to Ms Jansen unless the Tribunal considers that the facts of the case give rise to an exceptional case in which it would not be in the best interests of children for a positive notice to be in place. This is because none of the current charges or convictions recorded on Ms Jansen’s criminal history are defined as serious or disqualifying offences under the Working with Children Act.[4]
[4]Working with Children Act, s 221.
The Working with Children Act does not provide a definition for ‘exceptional case’. However, guidance has been provided in past matters on how to decide if the facts give rise to an exceptional case. In Commissioner for Children and Young People and Child Guardian v FGC,[5] the appeal tribunal stated that ‘exceptional case’ must be considered in the context of the legislation which contains it, the intent and purpose of that legislation and the interests of the persons whom it is designed to protect.[6] It said the term is in common use and should be considered without any special meaning or interpretation.[7]
[5][2011] QCATA 291.
[6]Ibid, [31].
[7]Ibid, [33].
Further guidance to deciding if there is an exceptional case is provided by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher & Anor,[8] where the Court looked at the risk and protective factors as determined by the evidence in that case.
[8][2004] QCA 492.
Section 226 of the Working with Children Act also provides factors this tribunal must have regard to in deciding if this is an exceptional case, bearing in mind the object of the Act is to ‘promote and protect rights, interests and wellbeing of children and young people in Queensland’.[9]
[9]Working with Children Act, s 5.
If Ms Jansen was to be issued with a blue card, that blue card is transferrable for all purposes. The tribunal is unable to place any condition on the issue of the card.
Section 226(2) requires this tribunal to consider the convictions against Ms Jansen, the nature of the offence and its relevance to child related employment, the penalty imposed, and anything else about the commission of the offence that is reasonably relevant to an assessment of the applicant for child related employment.
Is this an exceptional case in which it would not be in the best interests of children for a positive notice to be in place?
Ms Jansen’s evidence is as follows:
a)The syringes they found in her car were not hers. Ms Jansen says she helped a friend move out of his place and although she knew he used drugs previously, had no idea he left them in her car. She allowed the police to search her car because at that time she thought her car was entirely clean.
b)Ms Jansen says she had driven her vehicle from a psychiatrist’s appointment late that afternoon. It was approximately 7.00 pm and she decided to take her prescribed anti-depressant medication before driving.
c)Ms Jansen says the medication takes one to one and a half hours to take effect. She anticipated being home in a half an hour.
d)Unfortunately, she says her car broke down and the medication began taking effect while she was waiting for the RACQ to arrive. She fell asleep in the car and that is where the police found her.
e)Ms Jansen admits to having taken methyl amphetamine three days prior but says all of the other drugs were prescribed medications she had been taking for a long period.
f)However she consented to a blood test, having tested negative to alcohol, as she did not anticipate any residue of the methyl amphetamine would remain in her blood.
g)Ms Jansen says she made a mistake taking her antidepressant medications whilst on the drive. She thought she had enough time to arrive home before the medication became effective but says the breakdown of her car delayed her arrival. She also had been crying at the doctors, perhaps making her eyes red.
h)Ms Jansen says this is one of only three times she has used methyl amphetamine in company of a friend at the time. She no longer has contact with that friend.
i)She had not used any illegal drugs since 2015.
Ms Jansen makes a distinction between addiction and limited drug usage. She said she became addicted to prescription drugs and decided herself to undertake a rehabilitation course to stop their usage.
Ms Jansen’s psychiatrist says Ms Jansen has been prescribed Endep 50 milligrams, Seroquel 100 milligrams and Valium, to be taken at night. He says when she left his room on the 28th of January 2015, she was not slurred in speech nor did she have any symptoms of having taken drugs of any sort. She is used to taking her medication at night and she needs to take that medication. She is safe while driving.
Ms Jansen’s psychiatrist further says in her session with him in the late afternoon on the 28th of January she spoke about a number of issues which upset her, enough to have her crying for the best part of an hour. He says Ms Jansen is an emotional person and was not acting in an abnormal way.
Ms Jansen says there was no good reason for using methyl amphetamine except that she liked her male friend.
Ms Jansen wants to make clear that she knows she denied taking any drugs but she had a reason for that. This was because it had been 3 days prior she took methyl amphetamine (for the 3rd and final time) and she thought there should be no reason for traces of methyl amphetamine to show up in the blood test.
Two personal witnesses also gave evidence for Ms Jansen. Both of these witnesses gave supportive reports of Ms Jansen. However, one of them indicated he was not aware of the convictions when giving the reference. For this reason, I cannot place great weight on this reference.
A further reference was given by Ms Jansen’s sister. She is aware of the convictions. She says she still supports her sister as an excellent and compassionate educator. She has full confidence in her childcare abilities.
She said Ms Jansen had had a lot of time to consider the events. The period leading up to the event had been very stressful for Ms Jansen but she believes her sister is now able to cope better with anxiety and understands the triggers for her panic attacks. Ms Jansen’s sister says she is kind and patient with children and she has complete confidence in her sister’s skills in that area.
Risk Assessment
Protective factors
The Director-General points to the following protective factors in this matter:
a)Ms Jansen’s more recent submissions indicate that she has some remorse for her actions and has the support of her family and friends;
b)She indicates she has engaged in drug rehabilitation and is now drug free;
c)Ms Jansen sought assistance from a psychiatrist from 2013 to 2016 in relation to severe emotional and mental stress and has engaged in counselling;
d)She now has coping mechanisms to deal with panic attacks and takes prescribed medication to deal with depression; and
e)Ms Jansen says she no longer associates with people who use drugs and has cut these people out of her life.
Risk factors
The Director-General points to the following risk factors:
a)Ms Jansen's blood analysis certificate indicated that she had consumed multiple substances, prescription and otherwise, including methyl amphetamine and amphetamine;
b)Only after being provided with the certificate of analysis by Blue Card Services did Ms Jansen express remorse and take responsibility for her offending. This is concerning as it demonstrates that Ms Jansen may continue to minimise the extent of her drug misuse;
c)Ms Jansen failed to properly dispose of needles and syringes which were located by police in her vehicle. It suggests that Ms Jansen may not be able to provide a safe and protective environment for children in her care;
d)Ms Jansen outlined that she began using cannabis and amphetamines in high school and that she had engaged in illicit drug use again as recently as February 2014. She was addicted to prescription drugs for some time around 2014 and 2015;
e)The Director-General submits there is limited information to suggest she has sufficiently addressed the triggers in relation to her drug use or that she has adequate strategies in place to ensure she does not resort to drug use in the future;
f)Ms Jansen was a mature offender at the time of her most recent offending; and
g)The recency of Ms Jansen's offending is risk factor.
Discussion
Ms Jansen was an honest witness. She admits to the taking of methyl amphetamine three weeks before the incident.
I am concerned that these offences were very recent and that, despite having her licence suspended, Ms Jansen knowingly drove unlicensed.
Ms Jansen maintains the needles found were not hers. However the certificate of analysis clearly confirms that she had prohibited drugs, including amphetamine and methyl amphetamine, in her blood when she was spoken to by police.
I cannot place weight of the views of one of the witnesses called on behalf of Ms Jansen, her neighbour, as he did not have full knowledge of the convictions when giving the references.
However, Ms Jansen’s sister has faith in her understanding for her health issues and her child related skills.
Ms Jansen says without a positive notice, her professional advancement and further study will not be achieved. However, personal hardship is not a relevant factor when determining if the case is exceptional.[10]
[10]Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA
171, [109]
I am satisfied that Ms Jansen’s offending took place at an emotional time in her life. The offending is too recent to be sure that if another difficult period emerges in Ms Jansen’s life, she will not revert to illegal drug use.
I am not satisfied Ms Jansen has accepted the full implications of these convictions or how the decision to drive without a license reflects on her character.
This is so even though Ms Jansen has provided evidence of education she has undertaken in these areas. For example, Ms Jansen has provided copies of the following certificates:
a)Certificate of appreciation from Drug Arm, dated 28 October 2004;
b)Certificate of attendance in the Young Children and Grief Information Session from Yuingi Community Childcare Centre, dated 10 April 2006;
c)Supervisor certificate from the Department of Education, Training and Employment (Queensland Government), dated 04 October 2012; and
d)Certificate of participation in the Child Protection for Professionals Workshop from In Safe Hands, Educators in safety, dated 09 October 2013.
Ms Jansen is a mature woman whose background, training and life experiences should have assisted her in her recent decision-making.
This review is conducted on the basis that the welfare and best interests of children are paramount. When the risk and protective factors are weighted up, I am not satisfied Ms Jansen’s protective factors in issuing her with an unrestricted positive notice outweigh the risk factors and the correct and preferable decision is that an exceptional case does not exist, such that a positive notice should be issued.
The passage of time and a continuing good record will diminish the risk factors for Ms Jansen so that she may reapply at the expiration of this current period of exclusion.
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