JB v Director General, Department of Justice and Attorney General
[2023] QCAT 275
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | JB v Director General, Department of Justice and Attorney General [2023] QCAT 275 | ||
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APPLICATION NO/S: | CML192-21 | ||
MATTER TYPE: | General administrative review matters | ||
DELIVERED ON: | 11 July 2023 | ||
HEARING DATE: | 21 March 2023 | ||
HEARD AT: | Brisbane | ||
DECISION OF: | Member Matthews | ||
ORDERS: | That the decision of the Director General, Department of Justice and Attorney General that JB’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: | CHILD WELFARE – APPLICATION FOR REMOVAL OF NEGATIVE NOTICE – IS THE CASE EXCEPTIONAL – REVIEW OF DECISION OF BLUE CARD SERVICES – whether applicant represents a risk of harm to children – whether protective factors outweigh risk factors –where applicant has drug offences – protracted and lengthy offending history. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 20, s 21, s 24 Working with Children (Risk Management & Screening) Act 2000 (Qd), s 5, s 6, s 226 (2), s 360 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Hailstones, L |
REASONS FOR DECISION
Background
The applicant JB applied for a working with children clearance (‘Blue Card’) pursuant to the Working with Children (Risk Management and Risk Screening) Act 2000 (“The Act”)
Proposing to issue a negative notice, the respondent invited JB to provide her submissions as to whether or not there is an exceptional case.
Following receipt of JB’s submissions, and reassessing her eligibility, Blue card issued JB with the written notice of decision (negative notice) on 28 May 2021.
On 15 June JB filed an application to the Tribunal to review the respondent’s decision that her case was an exceptional case in which it would not be in the best interests of children for her to be issued a blue card.
A one day hearing was heard on 21 March 2023.
The law and legislative framework
Pursuant to the QCAT Act, the purpose of the Tribunal in its review jurisdiction is to make the correct and preferable decision by standing in the shoes of the decision maker.[1]
[1]QCAT Act Section 20(1).
This is based on a fresh hearing on the merits[2] Pursuant to section 24 of the QCAT Act, the tribunal may confirm or amend the decision under review; set aside the decision and substitute its own decision and return the matter to for reconsideration to the decision maker with any necessary directions the tribunal considers appropriate.
[2]Ibid s 20(2).
The paramount principle when considering and determining child related employment decisions is the welfare and best interests of children which is a paramount[3] consideration “to which all others yield,”[4]
[3]s 360 WWC Act.
[4]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
The regime of the Working with Children Act is to ensure protective scaffolding is placed around employment criteria for all people who wish to work with and or around children, and therefore, any hardship or prejudice the applicant may suffer if not successful in obtaining a blue card is of no relevance[5]
[5]Grindrod v Chief Executive Officer, Department for Community Development [2008] WASCA 289 at [109].
Background
JB is currently 30 years old and is the mother of one child.
Prior to the application, JB had struggled for many years with a long term addiction to methamphetamines which resulted in an extensive criminal history of over 30 offences ranging between 2011 – 2018, and 24 traffic infringements including two counts of driving while a relevant drug is present.
Prior to 2018 numerous attempts at rehabilitation were unsuccessful and resulted in many relapses during which time JB struggled with homelessness and a myriad of other struggles exacerbated by continued drug use.
In 2018 JB fell pregnant, and continued to offend and use methamphetamines, until she was able to return to rehabilitation.
Following rehabilitation, and her child being born, there has been a period of 5 years without any further drug related offences.
Filed proceeding materials.
Applicant:
The applicant filed and relied upon the following;
(a)A life story dated 22 July 2021;
(b)Bundle of references;
1. AS dated 29 March 2021;
2. Dr EJ (Respect Inc) dated 27 October 2021;
3. EN dated 9 August 2022;
4. HC dated 9 August 2022; and
5. Letters from SW, Psychologist, dated 5 June 2021 and 4 October 2021.
Respondent BCS:
The respondent relied primarily upon two bundles of documents marked BCS 1-99 and NTP 1-138.
The bundle of documents marked BCS included the reasons statement, criminal history, police reports in relations to offending and transcripts of sentencing remarks.
The bundle of documents labelled NTP included materials produced to the tribunal by Queensland Corrective Services and Department of transport and Main Roads.
Additionally, both parties relied upon written and oral submissions provided throughout the hearing and closing submissions provided in compliance with directions of the tribunal.
The reviewable decision
The decision under review is whether JB’s case is an “exceptional case.”
Given the applicant has been convicted of offences,[6] the Tribunal must have regard to the prescribed considerations set out in the WWC Act when determining whether an exceptional case exists.[7] and all other relevant factors.
[6]Schedule 7 WWC Act.
[7]s 226 (2) WWC Act.
The term exceptional case is not defined under the WWC Act but is rather a question of fact and degree to be decided incrementally on a case by case basis underpinned by the legislative framework where neither party bears the onus of proof in determining whether an exceptional case exists.
When considering whether an exceptional case exists, consideration was given to the paramount principle, the mandatory factors set out in and 226 (2) of the WWC Act which is not an exhaustive list, but rather they “merely contain particular matters which the tribunal is obliged to consider in deciding the application.”[8]
[8]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Consideration was also given to the Human Rights considerations, namely, as a public entity, it is unlawful for the Tribunal (public entity):
(a)to act to make a decision in a way that is not compatible with Human Rights; or
(b)in making a decision, fail to give proper consideration to a human right relevant to the decision, in these circumstances, section 26 (2) specifically the right of every child to “the protection that is needed by a child, and is in the child’s best interests, because of being a child”.
The tribunal is satisfied that when making this decision, it has complied with the Human Rights Act and acknowledges that if or where there may be a limitation on Human Rights, it is justified by the Act.[9]
[9]Human Rights Act 219, s 8.
In reaching this decision, I have considered all the relevant factors under the Act, and other relevant information on hand when determining if this is an exceptional case.
Further, the tribunal is fully aware of the transferability of the blue card and consideration was given accordingly in this regard when reaching this decision, that JB would have unfettered access to children and would be allowed to work unsupervised with and around children without restriction if reissued a blue card.
Oral Testimony
JB
JB commenced using methamphetamines in 2010-2011 at the age of 19 as a social habit. It was not until 2012 that it became a daily habit.
At this stage of life, she was transient, and it helped with her job as she struggled financially. At this time in her life, she was disassociated to some extent with family, had some support and whilst she was close to her family, they were not aware of her lifestyle.
In 2013, she stayed with her father for a short time to attempt to detox, but when she left, she had used within one hour.
JB claims to not have sought external help as she considered she had her habit under control, she was again homeless and performing sex to survive whilst staying in hotels.
In 2014 JB was charged with her first drug offence. Between 2014 -2017 JB had 37 Convictions with 23 Drug offences. When questioned about her drug offences, JB agreed that her drug use at the time was more extensive than her criminal history and at that time she was only a harm to herself.
JB confirmed her 2014 charges which included 10 offences in a week period between 16 September to 24 September 2014, and again in December. In explanation, JB provides that her friend and her had come to the attention of police, and when stopped, JB was charged with a utensil offence which was in her friend’s bag, for which she took the blame.
This led to her having to attend drug Diversion which involved 1 on 1 counselling, but she got nothing out of it, which was unsuccessful due to no housing and needing to survive and at that time she had no reason to care.
In 2016, JB confirmed the supply charges on her record. She Acknowledged that the supply of drugs would have impacts, but she was supplying the drugs to them as the middle man for their own use, they were in their 40’s and had no kids. When asked if she turned her mind’s eye to what they did with the drugs, she again stated it was for their personal use, but did acknowledge that in hindsight, it could have impacted those in their lives, and she should have definitely not helped them, or done it and that they still use to this day.
On reflection of those actions, JB stated that she is not proud of what she did, but she was in a very difficult point in her life and made poor choices.
Further evidence was provided regarding her 2016 drug offences, and JB provided full accounts of possession charges, and confirmed that she drove under the influence of drugs to a recreational ground, and she had drove under the influence on many occasions, but only because she had no choice. This than led to further questioning about driving under the influence (drugs present) which she confirmed as correct.
JB confirmed her traffic history contained driving with drugs present in her system, which on one occasion occurred in a school zone whilst also exceeding the limit. JB stated that it was again a bad time in her life, she is ashamed, but further stated, no children were present, and agreed when asked that she drove under the influence more than her traffic history reflects which includes drive without a restraint on a child. On reflection, JB states that it was dangerous, and ‘as a mother I couldn’t imagine putting my child in danger without a car seat.’
JB recalled that regarding her attempts to quit drugs, she agrees she tried three times prior to her incarceration, including when at her father’s, at Moonyah rehabilitation unit and on her own. On these occasions prior to her stay at Moonyah in 2018 she did not seek counselling but attended at group activities.
JB provides that she was incarcerated due to a breach of probation which occurred in April 2017. She at that stage was living with her sister whose partner used, and she was still actively an addict. Whilst in prison JB states that she reconnected with family, did programs, and worked whilst in jail until released in July 2017. Following release JB said that she identified mental health issues and substance use support, was medicated, had a partner, and lived once again with her father and was drug free for a short period of time.
In October 2017 she learnt that she was pregnant, moved in with her partner, and realised quite quickly that the programs didn’t assist her with coping skills which led to her relapse when she moved to the Sunshine Coast when her parole restrictions ended which led to the driving under the influence (drugs) charge in 2018 whilst pregnant which according to JB her frequency of use was really bad, even though pregnant, she did not consider herself worthy as everything was falling apart but following doing the live well course, live got on track.
JB states that it is easier to do life when life is good and identified that the triggers for relapse include relationship breakdown and being around other users.
On reflection, JB states she is disgusted with herself.
By March 2018 she entered rehab, which she paid for herself, and remained there for three months, she was assigned a caseworker and had to work 3 hours per day. When not working JB attended AA meetings, and other programs she could attend and has been clean since mid 2018.
Her motivation is her daughter and being a mother. Prior JB acknowledged she struggled significantly with depression, could not manage her emotions or triggers which was negatively impacted by being around particular people.
Regarding identifying her triggers since leaving Moonyah, JB states that she was not someone she would want to raise my daughter. Currently if triggered she has access to support and networks, counselling at work, by being honest with her family and attending meetings if needed.
Regarding deterrents, JB considers they are different now, than in the past. She has worked on them, she is more honest, she has on going communication with her family and has more decent people in her life and engages with a psychologist.
Currently she is working at RI and that her engagement with supports helps her to talk through stuff and get a different perspective on things and if she had to give advice to any young person developing a drug problem, she would tell them not to do it as it is a long road to get back to where you need to be.
EN
EN has known JB for almost 3 years as a co-worker and as a friend and is aware of JB criminal history from speaking with her but was not aware of the full extent of her history.
EN considers that JB in the time she has known her that her capacity for work has improved, she is a caring and genuine person and supports others in her community. From her observations JB she is an amazing mother, is well put together and ensures her child is well cared for and that her prior history should not be taken into account in regard to issuing her a BlueCard but rather the person she is now.
AS
AS is a colleague of JB and can be there for JB to debrief.
AS had read the reasons statement but was not aware of all the past offences and convictions. AS said that in their conversations, JB has reflected upon previous use and convictions and how she wants to turn her life around and that he considers that she has moved actively forward to change her life due to strong support systems in place including work colleagues, an advocacy base and friend base.
Dr EJ
Dr EJ is known to JB through employment and was the statewide co-ordinator when JB commenced at RI.
Dr EJ considers that JB was a great addition to their volunteer team in 2021, which led to full time position in 2022 as a paid educator. As a volunteer there was no front facing engagement and was a low risk environment.
Dr EJ was aware of the charges when employed, and that her knowledge base was due to initial telephone conversations which was had to determine if she was capable to be employed given her history but was not provided the reasons document but is aware the negative notice resulted from substance abuse, incarceration, and past history. This included her knowledge that JB struggled with stimulants addictions, and that she had attempts during incarceration to address her addictions, which failed, but considered JB to have provided her honest and frank disclosure.
Dr EJ considers JB to be self reflective and understanding of her past, and through employment all employees are offered and encouraged to access services available.
Dr EJ considers that JB can respect boundaries in her employment, and is able to be respectful, follows boundaries in order to maintain her best work and has taken offsite counselling and has the appropriate skillset to remain in her role.
Dr EJ supports JB in her application for a BlueCard.
Dr SW, Psychologist
JB commenced treatment with Dr SW in November 2020 and had 18 sessions. The last session being July 2022. There has been further sporadic attendances and telephone consults during 2020 to 2022.
The sessions involved management of anxiety and stress and strategies for such but not substance addiction as they were not current and were not the focus of the sessions.
Dr SW had some knowledge of the past offending, and considers that regarding the application, it should not matter what people used to do, but what they do now, including what they have learnt to do instead, and in regard to JB’s coping is what we hope current addicts will do.
It is the opinion of Dr SW that people learn to manage manipulators, and when they find positive ways to self regulate that is how they can overcome addictions. In a general sense, Dr SW provides that addiction is very complex, it is very layered which requires readiness and to identify what isn’t working and considers that relapse is a typically part of the pattern and is not a negative.
During consultations with JB, Dr SW considered that JB presented consistent, who was trying to turn things around and considered her to be successfully rehabilitated. This was opined by her coping strategies as Dr SW is of the opinion that JB has put in place new strategies and managing processes and is able to identify positive coping mechanisms and has put them in place and in use during times of high stress as she did not resort to use.
Dr SW also provides that when 12 months sober, it is no different reactively to someone who did not use. JB has coping strategies including relaxation, active problem solving, sets boundaries and goals and have positive supports.
This has led to JB having increased self-efficacy, which is achieved from issues people overcome. Dr SW reached this opinion, as JB did not look for a man or supports to work matters out for her and that this evidences that JB has deep insight into her history.
HC
HC recalled making the statement and stated she was aware of JB history. This history involved being incarcerated and drug supply but had not been provided a copy of the reasons document.
HC considers that JB has things in order, and is very supported, has seen her work through counselling and recovery, and considers that JB is aware of where she is going now, however, did reflect that they have not spoken together in too much detail.
Protective and risk factors
The tribunal has considered all the oral evidence and weights it accordingly. It is quite evident to the Tribunal that in the time that JB has been employed in her volunteer role and subsequent employment at RI that she has gained the trust and respect of her colleagues and has the capacity to perform her duties working with adults.
It is evident that JB works hard every day and remains connected to her support networks and has remained in a community outside of the negative influences of those from her past.
The tribunal has no doubt that JB is a loving mother to her child and provides for the child well, is working on her coping skills, and is gaining more self-awareness which signifies to the Tribunal a start of the growth process.
The tribunal commends JB for the steps she has taken on her recovery journey but notes that it has only been a short number of years, and whilst there has been no recorded relapse in 5 years, there has been a protracted history of relapse prior.
JB further did not provide any evidence to identify strategies in place which she continues to use, nor continued engagement with professionals who deal with addiction recovery. The Tribunal considers 5 years to be just a short part of the road towards her full active recovery, and whilst there is opinion that the risk of recidivism is low, Dr SW in her sessions with JB did not address her addiction, and therefore her evidence in that regard is weighted accordingly, and is but one consideration as to whether this is an exceptional case.
JB continues to maintain her support networks and showed insight into how people can negatively impact you when immersed into a particular lifestyle, however, when the witnesses provided their evidence, it became quite evident to the tribunal that the witnesses were not provided a full account of JB offending history, nor the extent of offending. JB acknowledged in her testimony that there was additional offending throughout those periods that did not result in charges.
The Tribunal agrees with the respondents that her history was already quite significant, and that JB having acknowledged such, the tribunal considers that the triggers and stressors which led to the past offending may be more significant and still unaddressed.
JB acknowledged her shame regarding her past offending, which the tribunal considered was sincere, however, JB on occasions downplayed and minimised her offending which does not satisfy the Tribunal that JB has sufficient insight into her past offending nor acceptance of the role she played regarding the impacts on communities and children regarding risks and harm.
JB throughout her oral testimony minimised her past drug dealing and justified her actions when she provided that they were middle aged men with no families or children, and she was just the middleman, and even though there was some reflective remorse in hindsight, to justify past offending cannot be ignored.
Those men had families, maybe not a wife, or spouse, or children, but families, and to not consider that any form of drug dealing has significant costs within our societies and on all members of the user’s families demonstrated to the Tribunal that JB is still not ready to accept the risks and harm associated with her past offences.
The harm associated with her past offending are far reaching and devastating especially for innocent children who can be caught up in the insidious after affects, and to continue to justify and minimise that offending was considered by the tribunal to demonstrate JB’s lack of insight and growth and as such further demonstrated to the Tribunal that JB’s opinions as to her offending remain the same as when she was charged.
Additionally, when JB was recalling her 2018 conviction whilst driving whilst a relevant drug was present and over the speed limit, JB again did not provide any insight, nor acceptance of the gravity of those offences.
Her evidence demonstrated deflection. JB stated that it was “at the end of the school zone and there were no children around” The tribunal considers this deflection demonstrates a lack of responsibility and understanding of the harm risks, as it is clearly an opinion of her view of that offending and the gravity of harm, she considered her offending to have on others. The tribunal views JB’s account of that offending as minimalising and therefore questions her ability to present as a role model for children if in her care.
JB clearly has not fully accepted that her behaviour was reckless, to attempt to extinguish the risks with remorse was not suffice for the tribunal.
In the decision of the Appeal Tribunal of Lister (No 2), when considering views on minimised and justified conduct, the tribunal considers the following as relevant to this decision that, the passage of time without further offence does not mean the risk has been reduced. The tribunal is of the same opinion when deciding this matter.
Orders
That the decision of the Director General, Department of Justice and Attorney General that JB’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.
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