LGJ v Department of Justice - Blue Card Services - [2025] QCAT 26

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

LGJ v Department of Justice – Blue Card Services [2025] QCAT 26

PARTIES:

LGJ

(applicant)

v

DEPARTMENT OF JUSTICE – BLUE CARD SERVICES

(respondent)

APPLICATION NO/S:

CML304-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

9 January 2025

HEARING DATE:

12 April 2024

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

1. The decision of the Department of Justice - Blue Card Services that the applicant’s case is not “exceptional” within the meaning of s 225 of the Working with Children (Risk Management and Screening) Act2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is an exceptional case.

2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act2009 (Qld), the Tribunal prohibits the publication of any information that could lead to the identification of the applicant and accordingly the published reasons for decision in this proceeding are to be deidentified.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – where applicant issued with negative notice – where long criminal history of drug use and violence – where serious offences committed – whether exceptional case

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Working with Children (Risk Management and Screening) Act 2000 (Qld)

Human Rights Act 2019 (Qld)

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Davis

REASONS FOR DECISION

On 17 June 2020, the respondent refused the applicant’s application for a Blue Card.
On 3 August 2020, the applicant applied to this tribunal for a review of that decision. The hearing and finalisation of the application have been delayed for a variety of reasons but this is the decision relating to the application originally lodged in 2020.
The applicant is currently working as a truck driver. He wishes to obtain a Blue Card so that he can move into youth work. He believes that his history and experience will provide him with the background to assist youth to avoid following the path of drug addiction and criminal activity he was drawn into as a young person.
The applicant is 44 years of age and has an extensive criminal history (some nine pages), including some offences categorized as “serious” offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld). They include:
(a)Enter dwelling with intent at night/ uses / threatens violence whilst armed in company.
(b)Robbed armed in company.
(c)Attempted robbery whilst armed in company.
(d)Common assault and assaults occasioning bodily harm in company.
(e)Obstruct police, wilful damage.
(f)Behave in a disorderly manner.
(g)Drug related offences.
(h)Attempted fraud, fraud, false pretences, imposition, stealing, and attempted stealing.
The applicant has spent considerable time in jail.
In considering this application, the Tribunal’s paramount consideration is the welfare and best interests of children, as every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
As the applicant has been convicted of “serious offences” as defined, a positive notice must not be issued unless the Tribunal is satisfied that this is an exceptional case in which a positive notice would not harm the best interests of children.
The Act sets out matters which the Tribunal must take into account in making that determination, but that is not an exhaustive list.
This is a fresh hearing on the merits, not an appeal, and the Tribunal must determine the correct and preferable decision. Neither party bears an onus of proof. The Tribunal must determine, on the balance of probabilities, whether this is an exceptional case in which it would not harm the best interests of children for the applicant to be issued with a positive notice.
In conducting the review, the Tribunal is acting as a public entity, as that term is described in the Human Rights Act 2019 (Qld) (‘HRA’). Accordingly, it is unlawful for the Tribunal to act or make a decision in a way that is not compatible with human rights, or in making the decision, to fail to give proper consideration to a relevant human right. A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA.
An oral hearing was conducted, and the applicant attended and provided evidence in support of his application. I also have the benefit of the written material filed by the parties, and the evidence presented by the applicant’s wife and general practitioner. Both parties filed written submissions.
The respondent submits that this is not an exceptional case in which it would not harm the best interests of children for the applicant to be issued with a positive notice, bearing in mind:
(a)The applicant’s long history of drug use and violence.
(b)Concerns regarding the applicant’s ability to self-regulate and de-escalate in situations of conflict.
(c)A lack of evidence supporting the applicant having the ability to manage his anger and frustration, respond appropriately to conflict and stress, regulate his emotions and exercise restraint, interact with and discipline children in a proportionate and appropriate way, provide children with a protective environment and act protectively towards children, and demonstrate respect for the rights, interests and wellbeing of others.
(d)The applicant’s demonstrated lack of respect for the law and lawful behaviour.
(e)The applicant’s past violent behaviour which “gives rise to an inference that there is a higher likelihood he will engage in violent, aggressive, or otherwise harmful behaviour in the future.”
(f)The applicant’s behaviour raises questions about his ability to present as a positive role model to children and young people in his care.
(g)The applicant has been subject to a Domestic Violence Order following an incident at a petrol station in 2009 – the allegation was that the applicant had raised a closed fist at his wife during an argument in the car, with children also present in the car.
(h)In 2014, the applicant and his wife relinquished an 11 year old child (from his wife’s former relationship) to the care of Child Safety, causing the child emotional harm.
(i)The applicant has over the years provided differing information as to when he started using illicit drugs, what type of drugs he had used, and how successful his attempts at ceasing illicit drug use had been – the material suggests that the applicant has in fact misused illicit and prescription drugs and alcohol from approximately 1994 – 2012.
(j)The applicant has repeatedly attempted to rehabilitate and/or stated that he is rehabilitated before returning to misusing substances.
(k)The applicant’s criminality is far more extensive than is reflected in his extensive criminal history, and so the absence of evidence of criminal offending in the period since 2012 is not a reliable indicator of him ceasing the misuse of substances.
(l)The applicant’s evidence should not be relied upon as he has a history involving crimes of dishonesty, and has been demonstrated to be a poor historian in various reports completed in 1999, 2010, 2011 and 2013. The Tribunal should, therefor, place less weight and reliance on his evidence.
(m)The applicant has a history of documented mental health concerns and there is insufficient evidence available for the Tribunal to be satisfied that his mental health is appropriately managed.
The applicant engaged in violent and anti-social offending between the ages of 17 and 32. The applicant provided evidence at the hearing that he was using and addicted to drugs at that time, and that the offences he was charged with, although many, do not reveal the full extent of his criminal conduct.
The evidence of the applicant, his wife, pastor, and his general practitioner is that:
(a)The applicant moved to Brisbane when 15 years of age and became involved with people using marijuana and alcohol. He began using amphetamines at 16 years of age and heroin at 17 years of age. He engaged in criminal activity to fund his addiction to these substances, and at the behest of drug dealers.
(b)He was jailed for the first time at 18 years of age. He was in and out of jail from 1998 – 2013. During that time he used heroin and methamphetamine until approximately 2010, and for the last approximately four years, used Xanax.
(c)His life from approximately 17 – 33 years of age was one of almost constant drug use and criminality. His actions were illegal and often violent and aggressive. Drugs were his first priority at the expense of attention to his family. He was rarely home as he left home every day to commit crimes to fund his addiction, and was often in jail.
(d)During those years, attempts at anger management courses or other courses offered were ineffective as he continued to use drugs. He accepts that he was, as described in a 2007 document an “abusive and high maintenance prisoner”.
(e)He was assaulted in jail and juvenile detention. He has since participated in a lot of counselling to manage the effects of the trauma he experienced due to the criminal life he had led, and the assaults in custody.
(f)He has not taken illegal drugs or engaged in criminal activity since 2013. He puts that down to engagement with counselling, including at ATODs, developing the skills to identify consequences of his actions, ongoing preventative medication, distancing himself from the people who were previously in his life, and the support of his wife, pastor, friends and GP. Counselling has enabled him to identify negative thoughts and triggers, and how to deal with those situations.
(g)He remains on a long term medication maintenance programme to manage his condition, supervised by ATODs. He takes suboxone daily. When he has needed medical treatment and operations, he has co-ordinated the use of medication and painkillers with medical professionals to ensure careful and safe medication management.
(h)Previous attempts to use medication as part of a plan to stop the misuse of drugs were unsuccessful as he continued to use heroin, and because the medication was a different formula which was more easily abused.
(i)He is now very careful with what he consumes. Even as an interstate truck driver, he does not consume stimulants or energy drinks to stay awake. Truck drivers are randomly drug tested for illegal drugs, and he is also tested by ATODs. He drinks alcohol rarely.
(j)He now lives with his wife and their child in an area built on top of his mother’s home. His wife used methamphetamine herself from the age of approximately 16 to 22 years old. She says she has never used heroin and has not used any illicit drugs for at least 17 years. She had two children prior to their relationship, neither of whom live with him. The boy was relinquished to state care many years ago due to his extreme violent behaviour and there has been no contact for close to 10 years.
(k)His priority now is spending time with his family when he is home. He has a small reliable group of friends he spends time with. His support network is made up of his wife, in-laws, children, church, pastor, friends, GP, ATODs and mother.
(l)He has identified and implements coping and self-regulation strategies to support the positive change in his life since 2013.
(m)He sees his GP regularly, and she constantly reviews his medications and mental state. There have been no signs of him using illicit drugs for many years. It is the evidence of the GP that:
(i)      She has treated the applicant since January 2009, and currently sees him approximately fortnightly and incorporates psychological therapy in her consultations.
(ii)      The applicant’s drug use is in the very distant past.
(iii)     He has the support of his wife following the investment of significant time and effort in addressing stressors when he was in and out of jail, and now has an amazing relationship with his family.
(iv)     He has numerous support systems in place and drug use is not a current risk.
(v)      There is no risk of him acting violently – that behaviour is well and truly in the past.
(vi)     There is nothing in her notes to indicate that the applicant was using drugs in 2012 but even if he had misused prescription drugs or used illicit drugs in 2013, that would not change her opinion of his current risk.
(vii)   She will continue to be available as a supportive presence in the applicant’s life.
(n)The applicant was baptised in 2012 after meeting his current pastor in jail. They have maintained contact, and the applicant and his wife drive the pastor to church each fortnight. The pastor describes the applicant as a responsible family man.
In 2009, allegations of domestic violence were raised after the applicant had an argument with his wife at a petrol station. Both the applicant and his wife assert that they were arguing but there was no violence and they deny that the applicant raised his fist to his wife. The applicant says a domestic violence order was made because he was advised not to dispute it as the making of the order would not affect him.
The applicant says he has many regrets, including not working with counsellors early to overcome his addiction and the behaviour that followed. Prior to 2013, he did not understand the benefit of engaging with counsellors and developing a support network. He did not know how to change his life until he undertook an extended six month program and developed the tools to change.

THE RESPONDENT’S SUBMISSIONS

The respondent submits that:
(a)There is limited probative evidence before the Tribunal to suggest that the Applicant has taken specific steps to address his difficulties with emotional regulation since 2011 and that any steps taken have been effective, and the tribunal should find that the applicant’s difficulties with emotional regulation have not been adequately treated or addressed to date.
(b)The absence of evidence of further offending is not evidence that the risks associated with working with children are reduced, rather it is the possession of insight that is likely to reduce the risks, and the applicant has demonstrated limited insight.
(c)Character references filed on behalf of the applicant should not be relied upon because the applicant’s support network had also filed character references prior to 2013 and he continued to use drugs and offend.
(d)Despite having a support network the applicant continued to offend until 2013 and the tribunal should not find that this same network is sufficient to prevent his relapse into drug use and offending behaviour when it did not in the past.
(e)The applicant’s wife lacks the ability to assist him in abstaining from substance use and antisocial behaviour, given that she herself is a former drug user with a criminal history.
(f)The applicant’s wife possibly lacks the ability to assist the applicant from abstaining from domestic violence given her history of being subjected to domestic violence in the past.
(g)The tribunal should not rely on the evidence of the applicant’s GP, given that she seemed to have been unaware of relevant information regarding the applicant’s previous misuse of medications.
(h)The applicant’s case is not “exceptional” and so a negative notice must issue.
(i)The tribunal must consider that a Blue Card, if issued, is fully transferable and unconditional.

RELEVANT FACTORS UNDER THE LEGISLATION

In relation to the factors I am required to consider:[1]
(a)The applicant has been charged and convicted of a myriad of offences, some of them serious, many of them violent and / or offences of dishonesty. They were committed in the context of seemingly continuous drug abuse and often almost immediately after being released from jail. He appeared in court in the order of 50 times. The applicant’s criminality extended beyond the offences he was charged and convicted for.
(b)The offences were committed during the period 1997-2012.
(c)The offences are highly relevant to employment or carrying on a business that may involve children. A person using drugs, engaging in violence or continually flouting the law is not a safe person to care for children.
(d)The applicant was sentenced to jail for many of the offences.
(e)The applicant was named as a respondent in protection orders issued in 2009, some 15 years ago. Domestic violence is highly relevant to consideration of a person’s suitability to be issued with a positive notice.
(f)The applicant has had dealings with the Department of Child Safety and he and his wife surrendered a child to the care of the Department when they and the extended family were unable to cope with the child’s behaviour.
(g)The applicant used illicit drugs and misused prescription drugs over a sustained period, and has struggled with his mental health.
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 226, 228.

CONSIDERATION BY THE TRIBUNAL

I find that the applicant has a supportive, trusting and respectful relationship with his doctor, and that the doctor forms part of his current and future support network.
The applicant made some terrible mistakes as a teenager which led him into a life of criminality, violence and drug abuse. As a result, he subjected others (and himself) to abuse and violence. His pattern of behaviour persisted for many years. He unsuccessfully attempted to change from time to time but was unable to until 2012 when he undertook appropriate counselling, formed a relationship with the pastor who is still present in his life, and was able to access appropriate ongoing support and the correct medical assistance. There is no evidence that the applicant has abused drugs or acted illegally in the last approximately 12 years.
All of the applicant’s offences were committed while he was using drugs. He does not use drugs anymore and is committed to a drug free future. I accept that there remains a risk that he will return to the misuse of drugs. That will always be the case. I have taken into account, however, the applicant’s evidence that he has not misused drugs since approximately 2012 is supported by evidence from his wife and doctor, and coincides with the cessation of criminal charges being brought against him. The applicant is older and more mature, has cut ties with former drug using associates, has undergone counselling, has insight into the damage he could cause if he returned to drug use, and is committed to a drug free future. He has the support of his family and the professionals with whom he is engaged.
The applicant is remorseful for his past actions, and has insight into the damage he has caused and the risks associated with any return to mistakes of the past. His criminality was linked to his drug use. He has now established a stable life for himself and his family.
The use of drugs is relevant to employment that involves children as the applicant would, if affected by drugs, not be able to provide adequate level of care to children. Involvement in criminal activity might place the applicant and those in his care at risk of coming into contact with criminals and dangerous and potentially drug-affected people.
I accept the respondent’s submissions that continued drug-relating offending, or illicit drug use by the applicant, would detract from his ability to provide a protective environment for children in his care.

I find, however, on the evidence available to me, that there is no ongoing illicit drug use by the applicant, and that there has been no drug use by the applicant since he received effective counselling and accepted help from his support network. He has not attracted the attention of the police for over 12 years. That is an exceptional achievement.
I must make a decision on the evidence and circumstances as they currently are and can be reasonably foreseen. I cannot make my decision, as urged by the respondent, on the basis of what might happen if the applicant’s circumstance change in the future.
The applicant engaged in a life of drug use and crime as a teenager which led him into a life of violence and drug abuse for close to 15 years. This led to stressors on his mental health, long periods in jail, dysfunctional relationships, and violence committed by and against the applicant.
The respondent urges that I consider the evidence of the applicant’s behaviour 1998 – 2012 as an indicator of his likely future behaviour. I consider that the applicant’s behaviour in the period since 2013 to be a more likely predictor of his current and future behaviour.
Remarkably, the applicant, after many years, stopped abusing drugs. That led to a stabilisation of his life. He no longer commits crimes. He is accepting of help. He has a support network active in his life. He is committed to a drug free future.
None of the applicant’s offences are disqualifying offences. The legislation contemplates that it will be appropriate for a person with convictions of the kind the applicant has to be issued with a positive notice in some circumstances – where it is an exceptional case it which it would not harm the best interests of children.
The applicant has served time in jail and been dealt other punishments by the courts. This process is not concerned with repunishing him for his crimes. This process is concerned only with determining whether these circumstances create an exceptional case in which it would not harm the best interests of children to issue a positive notice, bearing in mind the objects of the Working with Children (Risk Management and Screening) Act 2000 (Qld).
On balance, I am satisfied that this is an exceptional case in which it would not harm the best interests of children to issue a positive notice. I make that decision based on the applicant’s actions in persisting for many years in his efforts to manage his addiction, ultimately ceasing involvement in the use of drugs, cutting himself off from drug associates, accepting help and support, engaging in appropriate counselling, committing himself to be a positive and contributing member of society and maintaining this way of life for some 12 years.
Given that there has been some involvement by Child Safety, a non-publication order is required.
In making this decision, I have given proper consideration to relevant human rights under the HRA. It is unlawful for the Tribunal, conducting the review as a “public entity” and acting in an administrative capacity, to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision.
A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA. Human rights may be limited only if permitted under the Act, and a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
To give proper consideration to a human right, the Tribunal must identify the human rights that may be affected by this process and decision and consider whether the decision would be compatible with human rights.
I am satisfied that the rights to a fair hearing have not been limited. The application has been determined by a competent, impartial and independent tribunal after a fair hearing. The parties are being advised of the reasons for the decision. There are no other human rights affected by this decision. Accordingly, the process and decision are compatible with human rights.