JER v Director General, Department of Justice and Attorney-General
[2017] QCAT 13
•19 January 2017
CITATION: | JER v Director General, Department of Justice and Attorney-General [2017] QCAT 13 |
PARTIES: | JER |
| v | |
| Director General, Department of Justice and Attorney-General (Respondent) | |
APPLICATION NUMBER: | CML340-15 |
| MATTER TYPE: | Children’s matters |
HEARING DATE: | 28 July 2016 |
| HEARD AT: | Toowoomba |
DECISION OF: | Member Quinlivan |
DELIVERED ON: | 19 January 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Director General, Department of Justice and Attorney-General dated 26 November 2016 that this is an “exceptional case” is set aside. Pursuant to s 60(1) of the QCAT Act, I declare that this is not an “exceptional case” under s 221(2). 2. The Tribunal prohibits the publication of the names of the Applicant, her child and her referees. |
CATCHWORDS: | Negative notice – drug possession – first offence – no other criminal history – no exceptional circumstances |
APPEARANCES: | |
APPLICANT: | JER |
RESPONDENT: | Mr J Thompson representing Public Safety Business Agency |
REASONS FOR DECISION
JER is a 24-year-old woman who lives with her parents and child near Toowoomba. She was issued with a positive notice and a Blue card on 14 October 2010 and again on 4 March 2014.
Subsequently the Public Safety Business Agency was advised of a change in her police information. On 26 November 2015 the PSBA advised her that her positive notice had been cancelled.
On 18 December 2015, JER made an application to the Tribunal seeking a review of that decision. She admitted that she failed to provide any submissions at the time of the original notice due to her personal circumstances and as a result the decision to cancel her Blue card was made in the absence of any response from her.
The Applicant agreed that the information about her offences was true. She submitted that they were her first offences and that she was no longer in contact with any of the people or influences that led to her Court appearance.
She said that at the time of the offences her personal circumstances were very difficult because she was living away from home, surrounded by bad influences and in a relationship that was domestically violent.
As a result, she says she did not have a stable income, she dropped out of her TAFE course and only worked occasionally in a hotel job that did not require a Blue card. She has not worked in any child-related employment since mid-2015.
She outlined in her application the steps she had taken since committing the offences to address her offending behaviour:
a) Completion of Drug Diversion as directed by the Court on 24 July 2015 with Anglican Toowoomba;
b) Completion of a 4-month good behaviour period as required by the Court from 21 July 2015 until 21 November 2015;
c) She moved back in with her family, away from the bad influences and she ended the domestically violent relationship and obtained a Protection Order to prevent any further contact;
d) She obtained a good job and income working at the Southern Cross Hotel, Toowoomba;
e) She had a baby in May 2016;
f) She plans to return to her studies and continue with them until completed. She will require a Blue card and positive notice for that to occur.
What is the relevant law?
The relevant legislation is the Working with Children (Risk Management and Screening) Act 2000.
Section 6 of the Act provides that “the welfare and best interests of children” are paramount and that every child is entitled to be cared for in a way that protects them from harm and promotes their well-being. Section 360 of the Act confirms that principle for the purposes of reviewing a child-related employment decision.
Section 221 of the Act sets out that where a person has been convicted of an offence other than a serious or a disqualifying offence as defined in the Act then a positive notice must be issued unless it is an “exceptional case” where it would not be in the best interests of children for the Applicant to be issued with a positive notice.
The meaning of “exceptional case” is not defined in the Act but the decision in Maher’s case[1] provides that whether a case is “exceptional” is a matter of discretion, to be determined by looking at the circumstances of each individual case, and having regard to the legislative intention of the Act. What constitutes an “exceptional case” is a question of fact and degree.
[1]See Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
The Tribunal is required to consider the circumstances of the Applicant within the legislative framework to determine whether an exceptional case exists.
The purpose of the review is to reach the correct and preferable decision. The Act requires that this be done by way of a fresh hearing on the merits.
Any hardship or prejudice suffered by the applicant as a result of a refusal to issue a positive notice is irrelevant to a determination of the issue[2].
[2]CEO, Dept. of Child Protection v Scott (No 2) WASCA 171 at para 23.
The Applicant has not been convicted of a serious or disqualifying offence. Therefore, she must be issued with a positive notice unless this is an exceptional case.
Section 226(2) of the Act sets out the matters that the Tribunal must consider in determining whether an “exceptional case” exists. However, the list is not exhaustive and does not confine the Tribunal to consider only those matters.
The applicant has 2 convictions on her criminal history. These convictions arise out of the same set of circumstances. The offences occurred on 12 June 2015 when the applicant was 23 years old.
On 27 July 2015 she was convicted of unlawfully having in her possession a thing namely a glass pipe for use in connection with the smoking of a dangerous drug. Further she was convicted of unlawfully having possession of a dangerous drug, namely Amphetamine.
The penalty imposed on all charges was that no conviction was recorded with the applicant to enter a recognisance in the amount of $300 to be of good behaviour for a period of 4 months and a requirement that she attend a drug diversion program.
What is the applicant's story?
In her own words the applicant acknowledged that she had lived “a very blessed life”. Her school career was very successful with the only downside being her youngest brother being sick with cancer that led to considerable stress on the family. While at school, she was chosen by her teachers as a class carer for grade 8 students where she helped out younger students with school work and personal and emotional support.
In her Life Story the Applicant refers to 2 intimate relationships. The first relationship ended following a series of tragedies that culminated in the Applicant experiencing a miscarriage. Eventually her parents organised counselling with their family pastor that led the Applicant to a possible career in Event Management.
She then met her most recent boyfriend in April 2015 but, according to her, only a short time into the relationship he began to manipulate her which led to a more violent situation. She says that he exercised all when a lot of control over her life including her finances, time and relationships with other people in her life. She says he also pressured her not to attend her TAFE classes that led to her dropping out.
She claims that he was involved in drugs but that she was unaware of it until she was already implicated in his activities. It was when she received her court appearance for possession of drugs that she realised it was time to change her life around.
She claims that she confronted her boyfriend and pointed out that she wanted nothing to do with his illegal activities including his habit of drug use. She gave him an ultimatum that if he wanted their relationship to last he had to change his life around with her.
In August 2015 she started a job at The Southern Hotel and shortly thereafter fell pregnant to her boyfriend. Things then became very violent very fast. Eventually she confided in her parents and the police became involved. She obtained a Protection Order for herself and her unborn child.
She moved back home with her parents and cut all ties with anyone that her ex-boyfriend was associated with. She claims that she stopped smoking cigarettes when she became pregnant and she does not drink alcohol at all.
She asserts that she no longer takes drugs but admits that during the time with her ex-boyfriend there were rare occasions when she participated in using drugs including the evening on which she was given her Notice to Appear in Court.
The Applicant admitted to not being perfect but says she is accountable for her actions and plans to fix her mistakes by finishing her Bachelor of Education and her Events Management Course. She claims that her focus is on making a future for her baby and herself.
What is the Respondents position?
In relation to the matters, set out in section 226(2) of the Act the Respondent submits that following matters are relevant:
· The applicant has convictions for the only 2 offences on her criminal history. Neither of the offences are categorised as serious offences or disqualifying offences. However, all offences are relevant when assessing her eligibility to hold a Blue card.
· The offences occurred recently in June 2015 when the applicant was 23 years old. The offences were for possessing a dangerous drug and a utensil used to smoke the drug.
· Children have a right to be protected from exposure to drugs and to be cared for by persons who are not using drugs that may impair their ability to promote and protect children's best interests.
· Continued drug use by the Applicant will significantly impair her ability to provide a protective environment for the children in her care and to be an appropriate role model to them.
· The Applicant received a non-recorded conviction and was ordered to pay a recognisance of $300 to be of Good Behaviour for 4 months and attend a drug diversion program. I note that the Applicant attended to these requirements immediately after being sentenced.
· In relation to the other matters set out in section 226(2) of the Act, no other information was requested or received.
Is this an exceptional case?
The Respondent in their original Reasons was satisfied that an exceptional case existed.
The Respondent submitted that a significant concern was the recent conviction for drug related offences, particularly possession of methyl amphetamine which is listed under Schedule 1 of the Drugs Misuse Regulation 1987, Queensland, which is considered by Parliament to be the most serious category of dangerous drugs.
The Respondent referred to an Australian Crime Commission Report that provides insight into the psychological medical and social consequences of methyl amphetamine use.
The Respondent submitted that Blue card holders are expected to behave in a manner that protects and promotes a child’s safety and physical and psychological well-being. The Respondent asserted that the Applicant's personal drug use raised concerns about her ability to care for and act protectively towards children, due to the potential for her to be under the influence of drugs while children are in her care.
The Respondent commented on the Applicant's failure at the time of the original decision to provide any personal submissions, references or other supporting material and as a result, they were unable to gain any insight into the Applicant’s interaction with children in recent times, that could be relied on, to some extent, to mitigate the risk factors raised by the evidence.
The Respondent pointed out that the effect of continuing the applicant's Blue card is that the applicant is able to work in any child-related employment or conduct any child-related business regulated by the Act, not just the purpose for which the Applicant has sought the card.
Further there is no power to issue a conditional Blue card for example requiring the applicant to be supervised. Once issued a Blue card is fully transferable across all areas of regulated employment and business.
The Applicant represented herself at the hearing of her application. She gave her evidence in what appeared to be an honest, plausible and helpful manner. She admitted to the offences and described how on the day she was charged, she was doing a favour for her boyfriend and transporting three people in the car at the time.
In relation to the possession of the pipe she said she was wearing a large baggy jumper that belonged to her boyfriend or his friend and that she was aware there was something there, that was less than the size for pen but she did not check what it was.
In relation to the possession of the amphetamine, she admitted to police that everything in her bag was hers but that she hadn't seen the plastic bag with the drugs in it before and she thinks that it may have been put in the mobile phone pocket of her bag by someone who was in the vehicle with her.
She said that her boyfriend shrugged off the charges against her saying it was a first offence and they would go easy on her.
In the course of her evidence, she confirmed that she pleaded guilty and admitted that it would have been hard to fight and prove that the drugs weren’t hers. She accepted she would have to deal with the consequences. She acknowledged one previous offence for drink-driving in 2011. She also admitted that on one occasion she had tried a joint as a 16-year-old and had tried amphetamine on one occasion when her boyfriend insisted.
In response to a question about how she manages to find herself in these situations the applicant had difficulty explaining.
She described how she was able to fund having her son privately by working herself and paying all of the expenses associated with the birth.
She confirmed that she has reconnected with her family and plans to go back to her studies eventually. She indicated that she had now spoken to her mother and they have reconciled.
She wants to give her son the best opportunity she can and she emphasises that drugs are not a part of her life and she doesn't want to have anything to do with them. She asserts that she got rid of everything to do with her boyfriend and his lifestyle. He is not on her son's birth certificate.
She says that she will oppose him having anything to do with his son until he has proven that he is a suitable person with stability and a changed lifestyle away from drugs.
The Applicant's mother gave evidence and said that she was aware of the charges and advised that there had never been a time when she thought her daughter was under the influence of drugs.
She described how the family had assisted the applicant's boyfriend despite him having been previously in prison. She said that they had provided with considerable sums of money that were never returned. She said she thought he may have had a gambling problem.
She said that she is not aware of the Applicant ever saying that the pipe and drugs were hers and had never observed her using drugs. She also referred to other behaviour of the applicant’s boyfriend which had been concerning including a possible sexual assault of her daughter.
The Applicant's pastor gave evidence in support of the Applicant. She acknowledged that she had no knowledge of the applicant's involvement with the police but described her as great with children and being soft hearted and gentle but possibly too trusting.
She said the Applicant's partner was not a good influence on her and that she had prayed for her to find a path that she is now on. She said that she would have no concerns about the applicant looking after children. Due to her limited knowledge of the circumstances of this case I have only given a slight weight to her evidence.
The outcome?
The Representative for the Respondent reminded the Tribunal that the primary consideration in these matters is the “welfare and best interests of a child”. He emphasised that the Applicant's conviction is for relevant offences but they are not serious offences. They are relatively recent and it is clear that the nature of the offences weighed heavily on the mind of the Respondent.
He emphasised that the possession of dangerous drugs is a particular concern. He conceded that there was no evidence of habitual use of any drugs by the will Applicant and that there was no information available about the Court's reasoning in relation to the penalty imposed.
He suggested that the evidence does not reveal any ongoing concerns about whether the Applicant regularly uses drugs and that in fact this matter may be seen as a one-off instance. He pointed out the severe consequences if this was not in fact the case.
The Representative identified certain risk factors for the Applicant. These being the offending itself, the nature of the drug involved, and the fact that the association with drugs revolves around the applicant's boyfriend who is the father of her child.
The protective factors submitted by the Representative include the following:
· A significant change in the Applicant’s social circle,
· Her expressed intention and actions to place her child’s welfare as her highest priority,
· Her plan to engage in further education,
· The clear evidence from her mother and her own demonstrated insight into the problems associated with drugs and her expressed attitude to drugs generally.
The Applicant submitted that with respect to her boyfriend being a risk factor he will have to take legal action if he wants to have anything to do with her or her child in the future. He will need to satisfy her that he no longer engages in the behaviour which has contributed to her present situation. She says she has come a long way since the offences and acknowledges the importance of returning to education and the benefit of the strong family support she is receiving.
The Applicant impressed me as a young person who has reflected on the mistakes she has made and has taken immediate and deliberate steps to remove herself from the influences that led to her getting into trouble in the first place.
I am satisfied that she has demonstrated good insight into the critical importance of ensuring that as a holder of a Blue card and a positive notice she must always act in the best interests of children.
With respect the risk and protective factors identified by the Respondent, I find that the Applicant has put in place appropriate arrangements to ensure that she does not find herself in a similar position in the future. Her offending is limited to one occasion and while it does raise serious concerns I am satisfied that she has accepted accountability for her actions.
She clearly takes her responsibility to her child seriously and she has expressed a clear intention to provide a future for him and herself that is in his best interests. I am not satisfied that, on the balance of probabilities, that this is an “exceptional case”.
Should this decision be published in de-identified format?
Neither the Applicant nor the Respondent submitted that the Tribunal should publish this Decision in a de-identified format under section 66 of the QCAT Act.
However, I have formed the view that it would be appropriate for the Tribunal to make an order prohibiting the publication of the Applicant’s name to avoid the risk that, to do otherwise, could reasonably lead to the identification of the Applicant’s child. I am also conscious that the Applicant is a survivor of a domestically violent relationship and to publish the decision without de-identifying it, may deter other persons in a similar situation from pursuing their rights of review.
I am satisfied that it would not be in the public interest to release identifying information regarding the applicant or her child. I am satisfied that the principles of openness and accountability can still be achieved and maintained in the public interest by permitting the public access to the details of this decision and the reasons behind it in a de-identified format.
The orders are:
1. The decision of the Director General, Department of Justice and Attorney General dated 26 November 2016 that this is an “exceptional case” is set aside. Pursuant to s.60(1) of the QCAT Act, I declare that that is not an “exceptional case” under s.221(2).
2. The Tribunal prohibits the publication of the names of the Applicant, her child and her referees.
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