LMJ v Director-General Department of Justice and Attorney-General

[2024] QCAT 99

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

LMJ v Director-General Department of Justice and Attorney-General [2024] QCAT 99

PARTIES:

LMJ

(applicant)

v

DIRECTOR-GENERAL DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML474-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 March 2024

HEARING DATES:

10 December 2021
15 February 2023

HEARD AT:

Caloundra

DECISION OF:

Member Allen

ORDERS:

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

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – OTHER MATTER – blue card – where applicant seeks review of a decision to issue a negative notice – where applicant has criminal record in regard to drug possession offences – where applicant has been respondent to domestic violence order – whether it is an exceptional case in which it would not be in the best interests of children to issue a positive notice

Human Rights Act2019 (Qld), s 13, s 21, s 23, s 36, s 48, s 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 20, s 21, s 24
Working with Children (Risk Management and Screening Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 360

Briginshaw v Briginshaw & Anor (1938) 80 CLR 336
CEB v Director-General, Department of Justice and Attorney-General [2018] QCAT 26
Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171
Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86
Commissioner of Children and Young People and Child Guardian v Eales [2013] QCATA 303
Commissioner of 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
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCA 492
Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 37
ED v Director-General, Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102
Grindrod v Chief Executive, Department Officer, Department for Community Development [2008] WASAT 289
HAM v Director-General, Department of Justice and Attorney General [2021] QCAT 28
IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206
JA v Chief-Executive, Public Safety Business Agency [2015] QCAT 215
JR v Director-General, Department of Justice and Attorney-General [2020] QCAT 332
RPG v Chief Executive, Public Safety Business Agency [2016] QCAT 331
RWH v Director-General, Department of Justice and Attorney-General [2021] QCAT 407
SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT unpublished
SWJ v Director-General, Department of Justice and Attorney-General [2022] QCATA 119
Veaau v Director-General, Department of Justice and Attorney-General [2021] QCATA 52
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

YR v Director-General, Department of Justice and Attorney-General [2021] QCAT 138

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Saunders, Blue card services in-house legal representative

REASONS FOR DECISION

1. LMJ made application to enable him to obtain authority to work with children, known as a blue card under the Working with Children (Risk Management and Screening) Act 2000 (‘WWC Act’). He received a negative notice and statement of reasons on 20 October 2020 which meant that he was not eligible to work with children in Queensland. He has made application to the Tribunal to review that decision.

Legislation

1. The purpose of the WWC Act is to ensure that those who wish to work with children do not pose a risk of harm to the children they may come in contact with during the performance of their duties. An application is made to the Department of Justice and Attorney-General (‘the Department’) by a potential employer where the employee’s duties involve regulated employment, which is working with children, for a prescribed notice. The Department gathers information from various sources including the person’s criminal history, including charges and convictions and any domestic violence information. There are two possible outcomes to any application: a positive notice which means the person may work with children, and a negative notice which means they must not work with children. The Department issues the notice with a statement of reasons.

2. Applications for prescribed notices are determined in accordance with s 221 of the WWC Act where the person has no conviction or a conviction for offences other than serious offences or domestic violence information (relevant information), which is the case here. Where the Department is aware of relevant information as is the case here the Department must issue a negative notice if the Department is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person.[1] In determining whether there is an exceptional case the Department must have regard to the matters set out in s 226 of the WWC Act if there is a conviction or charge and s 228 of the Act if there is domestic violence information.

   [1]WWC Act, s 221(2).

3. The Department noted in its submissions that the term “exceptional case” is not defined in the WWC Act, and referred to the decision in Commissioner for Children and Young People and Child Guardian v FGC:[2]

   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 in the interests of the persons it is obviously deigned to protect, children’.

   I note that the Tribunal in FGC further stated that “it is a term of common use in everyday language” and held that:

   The proper approach to it is that, with respect, adopted by Philippides J: [in Commissioner for Children and Young People and Child Guardian v Maher and Anor[3]] to consider its application in each particular case, unhampered by any special meaning or interpretation.[4]

   [2][2011] QCATA 291 at [31] (‘FGC’).

   [3][2004] QCA 492 (‘Maher’).

   [4]FGC at [31]

4. The Tribunal when reviewing a blue card decision stands in the shoes of the decision maker and must make the correct and preferrable decision[5] based on a fresh hearing on the merits.[6] The Tribunal has all of the powers of the original decision maker and must make its decision in accordance with the legislation under which the original decision was made, the WWC Act and the QCAT Act.[7] The decision maker must assist the Tribunal to make its decision by providing a written statement of reasons with all of the material considered relevant to the Tribunal’s review of the decision.[8] The Tribunal may determine the application by confirming or amending the original decision; setting aside the original decision and substituting its own decision; setting aside the original decisions or returning them to the decision maker with or without directions for reconsideration.[9] There is no onus of proof which must be discharged by either party in regard to the application[10] and the Tribunal must make its decision based on the balance of probabilities in accordance with the decision in Briginshaw v Briginshaw.[11]

   [5]Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20(1) (‘QCAT Act’).

   [6]Ibid, s 20(2).

   [7]Ibid, s 19(a).

   [8]Ibid, s 21.

   [9]Ibid, s 24.

   [10]Commissioner for Young People and Children v Storrs [2011] QCATA 28.

   [11](1938) 60 CLR 336 at 361-362.

5. The Tribunal is required to exercise its powers in accordance with the objects of the WWC Act, which are to promote and protect the rights, interests and wellbeing of children and young people through, relevantly, a scheme requiring the screening of persons employed in particular employment or carrying on particular businesses.[12] The WWC Act is to be administered under the following principles  - the welfare and best interests of a child are paramount and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[13] When exercising its powers under the WWC Act the Tribunal must act under the principle that the welfare and best interests of a child are paramount.[14]

   [12]WWC Act, s 5.

   [13]Ibid, s 6.

   [14]Ibid, s 360.

6. The Department submits that the paramount principle ought to inform the standard of proof required in decisions under the WWC Act and that in Maher, as Phillipides J noted, it was accepted that “the Tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of consequences involved that there was an exceptional case.”[15] Given the paramount principle and the nature of decisions under the WWC Act, the “gravity of consequences involved” should be taken to mean the gravity of the consequences for children if a blue card were to issue. Any consequences, in terms of prejudice or hardship to LMJ, are not relevant in child-related employment decisions.[16] However, the potential consequences for children of issuing a blue card are significant. This approach is also said to be consistent with the approach of the Appeals Tribunal in Masri.[17] Having regard to the requirements of s 360 of the WWC Act and the precedent submitted I am satisfied that this is not to be a balancing of the interests of children against those of LMJ but a consideration as to whether the requirements of s 221 are met and there is an exceptional case in which it would not be in the best interests of children for him to be issued with a blue card.

   [15]Maher at [30].

   [16]Chief Executive Officer Department of Child Protection v Scott [No2] [2008] WASCA 171, Buss J at 109.

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

7. The Department noted that the decision in Maher is often cited for the proposition that the Tribunal is required to balance risk factors against protective factors in determining whether an exceptional case exists. The Department submitted in accordance with the decisions in Eales,[18] which considered the decision in Maher, that:

   The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors to find whether an exceptional case exists…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...[19]

   The Department further submitted that adopting a “balancing” approach risks the Tribunal being led into error, as 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 against, LMJ’s case. The Department submitted that when considering the factors, the Tribunal should take a qualitative rather than a quantitative approach, and 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. Clearly it is not simply a numerical exercise once factors are identified as being either risk or protective factors in regard to children; the extent to which they embody those factors must be considered so that the overall decision is based on whether or not all of the factors when taken together satisfy the Tribunal that there is an exceptional risk to children.

   [18]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 (‘Eales’).

   [19]Ibid, at [6]-[7].

8. In exercising its review jurisdiction, the Tribunal is acting as a public entity for the purposes of the Human Rights Act2019 (‘HR Act’) and therefore the HR Act applies to the Tribunal. The Tribunal is required to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights, or if this is not possible to interpret them in a way that is most compatible with human rights, in accordance with s 48 of the HR Act. Under s 58 of the HR Act it is unlawful for a public entity to act or make decisions in a way that is not compatible with human rights, or in making a decision, to fail to give proper consideration to a human right. This requires that the Tribunal identify the human rights that may be affected by the decision and consider whether the decision would be compatible with human rights. 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 in accordance with s 13(1) of the HR Act. In deciding whether a limit on a human right is reasonable and justifiable the factors set out in s 13(2) of the HR Act may be relevant. The relevant human rights[20] here include LMJ’s right to a fair hearing, privacy and reputation. The right of every child to “the protection that is needed by the child, and in the child’s best interest, because of being a child” is relevant in respect of children generally.

   [20]HR Act, ss 15-37.

The Paramount Principle

1. LMJ in his material stated that he is not just looking to get a blue card to get a job but rather obtaining a career in an industry where he can make a difference in the lives of those around him. The Department submitted that such considerations are not relevant in determining whether his case is an exceptional case. Given the paramount principle, such considerations must “yield” to the consideration of whether LMJ having a blue card is consistent with the welfare and best interests of children. This is a protective jurisdiction. Any hardship or prejudice suffered by LMJ as a result of not obtaining a blue card is of no relevance. Similarly, any benefit to children from having access to LMJ’s skills or “flair in working with children” is not relevant if it is not in the best interests of children for him to be issued with a blue card. Having regard to the discussion of the paramount principle above I accept the submissions of the Department and so I will not take into account the impact on LMJ of him not obtaining a blue card nor the potential benefits to children of him obtaining one in my considerations under the WWC Act.

Consideration of s 226 of the WWC Act

1. To determine if there is an exceptional case the Tribunal must have regard to the requirements of s 226 of the WWC Act. This requires a consideration of the details regarding the offences which LMJ has been charged with or convicted of over the years. These will be dealt with in accordance with the criteria set out in s 226(2)(a):

Whether it is a conviction or charge

(a)LMJ has convictions for possessing dangerous drugs in 1999, 2000, 2014, 2019; possessing utensils or pipes etc. in 1999, 2000, 2014, 2019; supplying dangerous drugs 2014, possessing property that may reasonably be suspected of being tainted property 1999, breaching a fine option order in 2000; entering a dwelling with intent to commit an indicatable offence and break two offences in 1999; entering a dwelling with intent in the night and break; stealing - 3 convictions in 1999; disposing of property that may reasonably be suspected of being tainted property - 5 charges from 1999 resulting in convictions in 2000, possessing anything used in the commission of crime defined in part 2, and possessing property suspected of having been used in connection with the commission of a drug offence 2019.

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

(b)None of the offences of which LMJ has been convicted are serious offences.

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

(c)LMJ was born in 1981 and his first offences in relation to drugs and property were committed in 1999 when he was 18 years old. He had further drug offences when he was 19 years old in 2000. There were further drug offences in 2014 when he was 33 years old and then again in 2019 when he was 37 years old. The Department submitted that the recency and repetitive nature of LMJ’s offending supports a finding that the case is an exceptional case in which it would not be in the best interests of children for him to be issued with a blue card.

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

(d)The Department provided details in regard to the offences committed by LMJ as follows:

A.      1999 offences

I.On 30 April 1999 and 30 May 1999 LMJ disposed of property, one Playstation game, reasonably suspected of being tainted property. On 29 May 1999 LMJ disposed of one pair of binoculars that was reasonably suspected to be tainted property.

II.On 18 July 1999 LMJ disposed of property namely a quantity of Sony Playstation games reasonably suspected of being tainted property and on the same day he disposed of a Sony Playstation  reasonably suspected of being tainted property.

III.The police attended LMJ’s address on 28 August 1999 on other matters. When they located LMJ police smelt the odour of burnt Cannabis Sativa. Police conducted a search and located a waterpipe and a bag containing 14 grams of green leafy material. LMJ attended the police station and participated in an interview. At the interview LMJ stated that the green leafy material was marijuana, and it was his and that he had last smoked it on the afternoon before police had attended. He also stated that the waterpipe was his and he had last used it to smoke marijuana on the afternoon before police arrived.

IV.During the same search mentioned above a diamond/pearl ring in a black box and telescope and tripod were located. In an interview LMJ stated that he had found the ring in the gutter a month ago and it was his intention to give it to his girlfriend. He stated that he did not know who the owner of the ring was and that he had made no reasonable effort to locate the owner of the ring. He stated that he had purchased the telescope and tripod from a friend. He said he met his friend who was carrying the telescope and tripod and asked him if he wanted to buy them. He stated  that he had purchased them for $40. He stated he had purchased stolen property from his friend in the past.

B.       2000 offences

I.On 28 March 2000 police entered an address in regard to an operation targeting property offences. LMJ stated that he had pawned a large amount of property he had received from other persons and that he was aware that the property may have been in fact stolen. He stated that over a several-month period he pawned property including Playstations, CDs and other entertainment items at several pawnshops. He stated that at the time he knew he was not the lawful owner of the items and that he was committing offences by pawning such items; he stated that he told the pawnbrokers that he was the lawful owner of the items so that he could get loans on such items.  Police were not able to locate the lawful owners of the property and believe that property subject to the charges is tainted property. During the interview LMJ stated that he had been involved in three break and enters where he had acted as the lookout, he had assisted in removal of the property from dwelling houses and assisted in the carrying of the stolen items. He stated that he did not keep any property or receive any money for the break and enter offences. This was confirmed by various versions provided by co-offenders charged by police.

II.On 18 April 2000 LMJ was found with Cannabis Sativa and a water pipe when police had attended to execute a search warrant. At interview LMJ stated that he had bought the bag of marijuana one week prior for $50. He stated that he was a regular smoker of marijuana (daily) but that he was not addicted to the substance. He stated he had smoked some marijuana earlier that morning in the bushes near the residence. He stated that he knew it was unlawful to have possession of marijuana.

C.       2014 offences

I.On 1 July 2014 police executed a search warrant in relation to dangerous drugs. LMJ was not present initially he attended the premises a short time afterwards and was handed a copy of the search warrant.

II.Police began a systematic search of LMJ’s bedroom and adjoining vanity which revealed a used water pipe, a small amount of green leafy material in a bowl, seven grams of green leafy material wrapped in plastic and a pair of scissors with residue on the blades.

III.A further search of the walk-in robe revealed 28 brown seeds in a bowl, five grams of green leafy material in a protein powder bucket as well as two clip seal bags, containing a total of 31 grams of green leafy material.

IV.A search of the kitchen revealed four grams of green leafy material and a set of digital scales.

V.Police searched the remaining rooms and found no further items of interest.

VI.When the police questioned LMJ, he stated that the green leafy material was cannabis and belonged to him. He stated he had smoked it for a number of years due to being diagnosed with ADD when he was younger.

VII.LMJ further stated that the last time he had smoked the cannabis was the night before and that he had used the water pipe. He stated that he usually orders an ounce at a time and uses the scales to weigh it.

VIII.When questioned about text messages on his phone which appeared to be from persons wanting to source drugs, LMJ advised that he had a few mates who he supplies cannabis to.

IX.LMJ then stated that he had only been supplying for a couple of months and provided his mates cannabis from his personal stock, selling them a quarter of an ounce for about $70-$80.

X.LMJ further advised that he only ever keeps two ounces at a time because he knows anything over 50 grams would mean he was ineligible for drug diversion. The total weight of the drugs was 49 grams.

D.      2019 offences

I.On 1 February 2019 police executed a search warrant at the home of LMJ.

II.At the time of executing the warrant LMJ was not home but his wife and children were. Police executed the warrant and conducted a search of the house.

III.Police searched the walk-in robe off LMJ’s bedroom and located a shopping bag containing six clip seal bags containing various amounts of cannabis between one and 120.6 grams, two chocolate milk bottles converted to water pipes, an unused water pipe with hose and cone piece., a plastic bowl containing cannabis and two pairs of scissors.

IV.Police contacted the applicant in regard to the search warrant and arranged for him to attend a police station to be interviewed about the property.

V.LMJ attended an interview he stated that all of the property belonged to him and that he used the cannabis for back pain which he had suffered from for several years.

VI.When asked why he had so much cannabis LMJ stated that he bought it in bulk because it was cheaper.

VII.LMJ further stated that he knew this was not a lawful reason to possess cannabis and was subsequently issued with a notice to appear.

Relevance of offending to working with children

(a)The Department submitted that LMJ’s criminal history contains convictions for drug related offending and property offences and that the offending in 2014 and 2019 occurred in his home. During oral testimony, LMJ confirmed that his wife and children were at home when police executed the 2014 and 2019 warrants and were privy to the reasons police attended on each of those occasions. He also confirmed that the cannabis located during the 2014 warrant was readily accessible to his children. The Department contended that such behaviour is inconsistent with the behaviour required of someone entrusted with the care of children.

(b)The Department submitted that LMJ’s drug-related offending raises questions about his ability to provide children with a protective environment. Children have a right to be protected from exposure to illicit drugs and to be cared for by persons who are not engaged in drug related activities, which may impair their ability to promote and protect the best interests of children. It submitted that the presence of cannabis in readily accessible areas of LMJ’s home, on the back porch and in the back yard, is particularly suggestive of a recklessness that is at odds with the required cautionary and measured behaviour needed to provide a protective environment for children.

(c)The Department submitted LMJ’s offending raises questions about his respect for the law and lawful behaviour and that respect for the law and lawful behaviour is critical for adults working with children as it contributes to the creation of safe and protective environments for children. The importance of an applicant’s respect for the law was recently emphasised in the case of IHI,[21] where the Tribunal held that “any child has a right to [to be cared for by] someone who has a respect for the law.”

[21]IHI v Director-General, Department of Justice and Attorney- General [2021] QCAT 206 [84].

(d)The Department submitted that LMJ’s offending as a whole raises questions about his ability to prioritise the rights, interests and well-being of others (including children and young people) over his own rights, interests and wellbeing. It also raises concerns about his ability to present as a positive role model. Children rely upon adults to be positive role models. The Tribunal has stated that “Children are heavily influenced by the adults in their lives for whom they should have respect and trust. Adults are expected to be able to regulate their behaviour and provide care and a protective environment for children.”[22]

[22]RWH v Director-General, Department of Justice and Attorney-General [2021] QCAT 407.

In the case of a conviction - the penalty imposed by the Court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under s 367, the Court’s reasons for the decision.  

(a)The penalties imposed were in relation to the 1999 offences of possessing dangerous drugs and utensils or pipes and possessing property that may reasonably be suspected of being tainted property. On all charges no conviction was recorded and LMJ was fined $1,000 with a fine option order of 148 hours community service. The fine option order was revoked after having served 118 hours.

(b)The penalty imposed in relation to the 1999 offence was committed on 14 June 1999 - entering a dwelling with intent to commit an indictable offence and break - no conviction was recorded and LMJ was fined $750. A penalty was imposed in relation to offences committed on 28 June 1999 of entering a dwelling with intent in the night and break and on 9 August 1999 of entering a dwelling with intent to commit an indictable offence and break. On all charges no conviction was recorded. Total compensation was $1,200 with recognisance of $1,000 and to be of good behaviour for 12 months. Judge Robertson in his sentencing remarks noted that LMJ’s counsel had talked him into giving a penalty on the light side although it would involve him paying back people who lost money as a result of his offending. As a matter of fairness and justice he did not order that LMJ pay the lot, but a third. The fact that he had a job was an important factor, and that he was back with his parents. Judge Robertson noted that his counsel would have told him that if he was to repeat this sort of conduct, particularly now with this history, he would be sent to jail.

(c)The penalty imposed in relation to the offences committed on 18 April 2000 of possession of dangerous drugs and possess utensils or pipes was a conviction and fine of $700.

(d)The penalties imposed in regard to the 2014 offences included that there was to be no conviction recorded on all charges, with a fine of $1,200 in respect of the supply offence, and a recognisance of $1,500 in respect of the other offences with a good behaviour period of 18 months and drug diversion. Magistrate Tonkin in sentencing remarks stated he had taken into account LMJ’s plea of guilty, his early plea, and that he had been out of trouble for 14 years. He noted that “if you think you can stay out of trouble you are wrong, because you have been caught and there sure were a lot of small amounts scattered all over your house.” The Magistrate advised LMJ that he should have a spring clean and that if he has indeed given up he should get rid of it all because it would not be a good look if he was back in a couple of weeks or months. That if he has been able to give up after more than 15 years of using that is fantastic. That a lot of people with chronic cannabis use like him find it difficult to give up, and if he is not able to give up then he had better go and get some good drug counselling and rehabilitation for the purpose. Magistrate Tonkin said they appreciated that the medical evidence is that cannabis is very valuable for all sorts of medical conditions, but that this was not Parliament’s position and that the law had to be applied, obeyed, and enforced. After sentencing Magistrate Tonkin noted that there are new medications to treat attention deficit disorder-spectrum-type behaviours, and if LMJ still needed that type of medication, he may have found talking to a doctor about his past reactions to Ritalin may assist, as the doctor may have other effective medications available. The Magistrate stated that “I am sure most of us don’t want to be on prescription drugs all of our lives but that is the legal stuff and that is the way to stay out of jail”.

(e)The penalty imposed in regard to the 2019 offences was that a conviction was recorded with a $850 fine. Magistrate Stjernqvist stated in his sentencing remarks that he took into account LMJ’s early plea of guilty, that there has been nothing since 2014, and the quantity considered that is a lot. LMJ stated that with the pain he was in he does smoke a lot of cannabis. There was no explanation as to why a conviction was recorded.

Any information about LMJ provided under the sections 318, 319, 335, 337 or 338 of the WWC Act.

(a)No information was requested or received pursuant to these sections of the WWC given that they were not relevant or applicable to this matter.

Anything else relating to the commission, or alleged commission of the offences that is reasonably considered to be relevant.   

(a)The Department’s submissions in this regard are considered in the risk and protective factors above.

1. As mentioned above LMJ has also been the subject of Domestic Violence orders and the Tribunal must have regard to the matters in s 228(2) of the WWC Act in deciding whether there is an exceptional case:

   (a)have regard to the circumstances of a domestic violence order, including the conditions imposed on the person by the order.

   (i)      A temporary protection order was made against LMJ on 27 June 2007 with the aggrieved and a child being the other parties, with LMJ to be of good behaviour towards the aggrieved and child and not commit domestic violence against them. LMJ was also ordered not to possess a weapon. The order was effective to 26 June 2009. The circumstances were that a neighbour called police to report LMJ and the aggrieved being in the yard, with LMJ yelling at the aggrieved. When police attended they located the aggrieved in the garage where she was crying and looked distressed. LMJ returned and the aggrieved became upset again so police entered the premises with her. The aggrieved told police she was often intimidated by LMJ who stood over her to win an argument, with the arguments often over the way LMJ looked after their child. The police tried to talk to LMJ who became agitated and yelled at police. There was a history of verbal arguments with LMJ getting more and more threatening and intimidating, possibly because of illicit drug use. The aggrieved stated LMJ needs help with emotional problems he has and fears he is getting worse and will not improve without help, and therefore the aggrieved required protection. The aggrieved stated that she was 22 years old and that LMJ was her ex-partner. They had a daughter who was 22 months old and the aggrieved was currently 20 weeks pregnant. She had known him for 4 years and they had separated two years ago though they had stayed friends and he would come to the house and stay over and spend time with her and the child. She had gone with her mum and the child to pick LMJ up after work and he seemed in a bad mood. The child was teething at the time and crying in the back of the car. He became agitated and said “I don’t need this. I’m sick myself”. He asked why the child was crying and she explained the child was teething. He started to speed up the car. She requested he slow down and he said “if you don’t like the way I drive get out”. They got back to her house and he walked off and she went inside to help unpack the shopping. He came inside and went to the room where he slept, and the child was in the room. She heard him mutter and then shout “that’s it I am leaving”. He then went to the garage and grabbed items out of the car and threw them out onto the ground. He became angry and shouted things. The aggrieved’s mother came out thinking he was throwing things at the aggrieved and they began arguing. LMJ then drove away, initially taking his daughter with him, and then bringing her back. Her mother tried to stop a car to help and drove off, following LMJ. LMJ called the aggrieved and asked if she was alright and said “we can’t go back from that”. He then said he was coming back to grab whatever stuff he still had there. The aggrieved was sitting on a chair in the garage when the police turned up. LMJ then drove into the driveway. The aggrieved was crying due to LMJ being so angry and aggressive, they had fought in the past and that was the reason they were no longer together. They had had arguments over money, which had never escalated to the level they had that day. The Department noted and the Tribunal confirms that at the hearing the circumstances which gave rise to the imposition of the domestic violence order were put to LMJ, and he accepted that the incident occurred as outlined in the police material.

   (ii)      A protection order was made against LMJ on 5 December 2016 with the aggrieved and 3 children as the other parties. The order was varied in 2017 to allow contact with the children. The order was again varied in 2018 and was extended to 25 February 2020. LMJ was required to be of good behaviour towards the aggrieved and not to commit domestic violence against her.  He was to be of good behaviour towards the children and not commit associated domestic violence against them and not to expose them to domestic violence. The incident took place on 20 November 2016. An argument developed between LMJ and the aggrieved. The aggrieved stated that the main issue of the argument was LMJ’s lack of assistance around the house and with their children where the aggrieved has been studying at university. LMJ allegedly called the aggrieved derogatory names which he later confirmed at the hearing. The argument escalated and whilst both parties were in the main bedroom, LMJ punched the aggrieved with a closed fist, striking her on her left jaw. As a result of the punch, the aggrieved felt immediate pain to her mouth and jaw and then realised a small cut was inside her mouth as she was bleeding and her left jaw started to swell. She immediately tried to leave the bedroom. However, LMJ grabbed both of her shoulders in an effort to prevent her leaving. She broke his hold and exited the house leaving the children with LMJ. She went to the police station but it was not open and went to her parents’ house, where police took up with her. She showed police a text message from LMJ at 1:18pm, stating among other things “I’m sorry I never meant to hurt you”. Police observed swelling to the aggrieved’s jaw on the left side of her face. The aggrieved stated that there had been no domestic violence incidents reported to police in relation to LMJ, but stated further the verbal arguments were becoming more frequent between them and that the current incident was the first time LMJ has caused her any injury.

   (iii)     Whilst police were speaking to the aggrieved they were advised that police were at the matrimonial home speaking to LMJ. He was then conveyed to a police station.  He stated a verbal argument with the aggrieved did occur  earlier in the day which started because the aggrieved did not hug LMJ that morning. He decided to allow things to cool down, and took the couple’s daughters to the beach, returning several hours later. The argument continued and the aggrieved punched and pushed him and also slammed a door into the back of his head as he was leaving a room. He stated he did not suffer any injury as a result. He admitted to grabbing the aggrieved by the shoulders, stating he was just trying to calm the aggrieved down as she was yelling. He denied punching the aggrieved in the jaw, stating he was not sure how the aggrieved sustained her injury other than she received it when he was holding her shoulders and the aggrieved struggling to break free. He stated he had attended a police station and found it closed and then called the police which resulted in them attending his address. At the hearing, LMJ was asked if he “punched the aggrieved with a closed fist, causing a cut to her inner lip, swelling and bleeding” he stated “yes I agree with the outcome not the circumstances, there was a lot more involved in that, but yes, I did hurt my wife”.

   (iv)     It was stated in a police report in regard to the children that the argument had continued in the bedroom away from the children. Though the children were at home at the time they did not witness the physical altercation. Sighted the children and they appeared fine and well and suffering no ill effects of this incident. At the hearing LMJ confirmed that the children were at home when this incident occurred. He further stated that when he attended the police station in respect of this incident the children attended with him. The Department submitted this is particularly concerning and raises questions about LMJ’s ability to act protectively toward children and provide them with a protective environment.

   (b)The length of time that has passed since the event or conduct the subject of the information occurred.

   (i)      There has been a long period of time since the first domestic violence incident in 2007 and some years since the 2016 incident. It is noteworthy, however, that the domestic violence order in respect of the 2016 incident continued until April 2020 and so was in place when LMJ made his application for a blue card.

   (c)The relevance of the information to employment, or carrying on a business, that involves or may involve children.

   (i)      The Department submitted that the material produced to the Tribunal reflects allegations relating to LMJ’s engagement in domestic violence and various alleged failures to act protectively toward, provide a protective environment for, or act in the best interests of his children. It submits that it is of particular concern that the material suggests LMJ perpetrated domestic violence against his partner whilst his children were at home and in earshot of his verbal abuse. It submitted that the Appeals Tribunal has recently held in a blue card matter, “it is now accepted and understood that a child exposed to domestic violence can experience serious physical, psychological and emotional harm.”[23] In another case it was found that to restrict the impact of domestic violence on children to only direct physical assaults rather than acknowledging the impact of mere exposure to domestic violence, minuses “both the events and the seriousness of exposing a child to it.”[24]

   (ii)      The Department noted that LMJ’s children were included as named persons on the domestic violence orders imposed in 2016 and 2018 and that this indicates that at the time, the Court would have been satisfied that it was necessary or desirable to protect them from associated domestic violence or being exposed to domestic violence committed by LMJ. This factor was recognised by the Appeals Tribunal in MAP.

   (iii)     The Department submitted that when taken as whole, LMJ’s domestic violence-related behaviour raises concerns as to his ability to make appropriate behavioural choices, exercise judgment and resolve relationship conflict in a calm and non-aggressive manner. Children rely upon adults responsible for their care and wellbeing to manage relationship stressors in an appropriate manner and to model appropriate behaviour. Therefore, LMJ’s domestic violence history raises concerns as to his eligibility to engage in child related employment. The domestic violence information and LMJ’s oral testimony raise questions about his ability to act protectively of children and young people and provide them with a protective environment. The Department submitted that children are inherently vulnerable. Their welfare depends upon adult carers being able to recognise risk and act in an appropriate and protective manner. The Tribunal has previously held that a person working with children must be “vigilant” in their protection of children in their care.[25]

   (d)Anything else relating to the information that the chief executive reasonably believes is relevant to the assessment of the person.

   (i)      The Department’s submissions in this regard are included in the risk and protective factors set out below.

   [23]Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 52.

   [24]Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 37 (‘MAP’).

   [25]CEB v Director-General, Department of Justice and Attorney-General [2018] QCAT 26 (‘CEB’).

Risk and Protective factors

1. LMJ, in his response to the original application, and later in his life story, stated he was born in 1981 to an alcoholic mother and that he suffered abuse in the form of neglect from the day he was born and that he was hospitalised as a child along with his sister from this. He was removed from his mother at the age of 4 and he and his sister were, after a few different foster homes, were fostered to a family. At around the age of 8 he became more prone to outbursts over the slightest thing, and his mother was trying to have contact and visits with him. His foster parents tried to occupy him with activities. They took him to many doctors and psychologists and he was eventually diagnosed with ADD (Attention Deficit Disorder) and prescribed Ritalin.

2. LMJ says he was always in trouble at school for being disruptive, and although the Ritalin helped for a while, he would always be defiant towards those he disagreed with. His grades never suffered and he was always an A or B student. When he was 13 his foster parents noticed he was not growing or developing like most kids and again he was taken to the doctors. He had stunted development and they offered injections to rush puberty. He refused as he did not like prescription drugs because of the way that the Ritalin made him feel. At 14 he moved to the coast, stating leaving everything he knew as a kid was quite hard. He attended high school on the coast from grade 10 and this is where many of his troubles began. At this time the Ritalin had little or no effect except to make him feel ‘like a zombie’; he started to act out even more at the fact that he was being forced to take something that made him feel the way it did, and he hated it. He met most of his good friends at High School, but after numerous suspensions he was asked to leave and not return. This sent his foster parents over the edge and after a huge fight he was asked to move out at 15.

3. LMJ was introduced to cannabis not long after and for the first time he was able to stop Ritalin without all the negative side effects. He was no longer walking around ‘like a zombie’ and decided to get rid of Ritalin altogether. His outbursts were less frequent, and he was happier at the fact he was finally eating properly and putting on weight, something he always found hard to do, so this was a massive self-confidence boost for him. After a few months he was able to return to school on condition he repeat year 11 due to the time he had missed. He attended for 2 months before leaving. During this time he also returned home and stayed for 1 and a half years.

4. At 18 he met some ‘rather shady characters’ and his life took a negative turn and he started to get into trouble with the law. He was still in the mindset of blaming everyone else for his mistakes and subsequently charged with tainted property and cannabis possession and placed on community service. The community service was revoked due to a misunderstanding, he was again charged with cannabis and property offences, and had unpaid fines that he was placed in jail for. During his court appearance he was sentenced to 18 months good behaviour and a fine for the cannabis and property charge. He received a two-week jail term for the revoked community service, to run concurrent with his unpaid fine sentence. The fines were paid after 5 days and he was released. With his mates having had enough of his ‘dumb’ decisions they got him a job delivering bins in Sydney for approximately 6 months and he continued to do it for 2.5 years. He says that he stayed in this job for 3 years and that it was an adventure ‘to say the least’. He travelled between NSW and Queensland doing this job. Returning to the coast he moved in with a friend and family and that is where he met his now wife of 17 years. He got another job with a friend working for his brother’s plumbing company. And he worked there for 4 years before moving on. He then went to a concrete pumping company and stayed there for 10 years before being made redundant.

5. He met his wife in 2004 and they now have 3 children, all girls, who are all physically and mentally healthy. In 2017 his wife and he separated for 8 months while they worked on some issues that had arisen in their marriage, during this time LMJ completed a Men’s Choosing Change group “to deal with life’s curve balls better”. He moved back into the family home where they all still live today. His wife is a spiritual person who constantly helps LMJ keep focussed on his goals. His daughters all attend school with the eldest having two part time jobs.

6. In 2012 his world came crashing down when his biological sister passed away after a 2-week battle on life support due to a car accident. She donated her organs and saved three people. Her accident sent LMJ into a depressive state again and he turned to cannabis. Losing his sister hit him hard as he felt as though he had lost the only person that could tie him to his past. After his sister’s death there was a messy court case surrounding her children and the money that they were entitled to from the accident. He was never involved in the court case as he did not agree with the amount of fighting from both sides and felt his sister’s name was being dragged through the mud for financial gain and not the children’s best interest.

7. During this time his place of work supported him and he returned to work and injured his hand which required 12 weeks off work on work cover. He again turned to cannabis to control the pain. In 2015 he sustained a back injury while at work after falling off his pump which put him out of action for  around 6 months. He was given Tramadol, Lyrica and Valium. These prescription  drugs effected him poorly, mentally and physically: he lost weight to the point where he was 54 kgs and was constantly in a mind fog of living with severe sciatic pain and inhibited everyday functioning. He disposed of the prescription drugs and partially relieved the pain using cannabis and gym work and returned to normal living. At this time he was charged with cannabis possession and given drug diversion.

8. In August 2014 he was charged with supply of cannabis after a friend asked if he could help get him any. Although he says he never helped this friend he was still charged with supply and possession. He was given a fine, 18 months good behaviour bond (not broken) and no conviction was recorded. His last charge for cannabis and only conviction came in 2019, again for pain control and ADD, for which he was convicted of possession and fined. The police found some cannabis and a water pipe in his possession.

9. In 2019 he had a falling out with his foster mother over an issue of his sister’s eldest sons: he was accused of holding back the name of the real father after the DNA test came back negative for the person they thought was his father. His foster brother and sister believed his foster mother and they no longer speak at this time.  It was now that he realised how much negativity surrounded his life and he started to change his perspective of who he wanted around him. He speaks regularly to his foster father as he is a positive influence in his life and only encourages him towards his goals, he loves his family very much and states that he realises how much his foster mum and dad put on the line for him and he will never forget that, and that sometimes it is better to let the air settle than to rush in headfirst.

10. In early 2020 he had his sister’s second son come and live with him as he was basically homeless at 14; this was arranged through Youth Justice. He was a very broken child that had been pushed and pulled from home to home as a pawn and he felt he was on a path to destruction. He lived with him for 3 months and at this time LMJ was his legal guardian. He has since left to live with his girlfriend.

11. With a lot of the negativity cut from his life he came to a realisation that he needed to confront his early childhood trauma and reached out to his biological mother for answers. He could not have done this without the support of his wife and children, his friends and BB. The Salvation Army offered him a course called the Positive Lifestyle Program and this made it easier to talk and listen. On talking to his mother he came to learn that life throws many challenges to everyone and that the hate and anger he had pent up was undeserving and quite selfish on his behalf. He says that what happened to him as a child hurt him, but his own stubbornness stopped him from learning the truth earlier; his mother explained how her life was affected by sexual abuse, drugs and alcohol from an early age which explained how she got to the point they were taken away. He states hearing the truth was like fog clearing and he could finally see the path.

12. In June of 2019 he quit his job as a concrete pump operator, something he had done for the previous 12 years, and then started his Certificate 3 in Individual Support (Disability) and Certificate 3 Individual Support (Aging, Home and Community). He passed the course in November 2019. To better help him on his new path he enrolled in and completed a course through an organisation called QulHB, and completed the MAISE program in July 2020.

13. In early 2020 after speaking to a friend and his wife about being frustrated that his doctor would not listen to him about medicinal cannabis, he was referred to a different doctor who has since changed his life. After the initial consultation it was agreed that he would finally be approved for medicinal cannabis and CBD for his ADD and pain relief; this in turn has effectively ended his illegal use of cannabis meaning for the first time he can live without the fear of being prosecuted as he is now taking the correct legal paths, a doctors certificate provided.

14. LMJ feels his life is an open book. He states that he will always be upfront about his criminal history, especially his cannabis use, and his mistakes are just that, and he will always own them. He has now taken every legal step to secure his medication and follow the instructions to ensure safe use.

15. LMJ’s doctor, VK, provided a letter and was cross-examined at the hearing. He confirmed that LMJ was a long-term patient of the practice. Dr VK stated that he had reviewed LMJ’s criminal history. He stated in regard to the 1999 property offences that LMJ reported significant remorse and insight into his actions. He believed that it was somewhat of an isolated incident and was not repeated. There were 5 court appearances involving marijuana from 1999 to 2019. Of these only one proceeded to conviction in 2019. He subsequently saw Dr VK for a trial of medicinal cannabis. During the initial consultation for cannabis they discussed the following: that LMJ was diagnosed with ADD (ADHD) when he was 7 years of age, that he was trialled on conventional medication including Ritalin, and that he has seen multiple medical professionals. They reviewed imaging from 2015 which showed a lower back cause for his chronic pain. He had trialled other medications for his pain including Lyrica, Tramadol and Panadiene Forte which have been inadequate and caused complications. LMJ had previously relied on the use of illegal cannabis to control his pain and mental health symptoms. He reports significant remorse in needing to find an illegal path for obtaining his cannabis and he is now stabilised on medicinal prescribed forms of cannabis for his symptoms. His dosing and compliance with prescribed cannabis through them has been as per their recommendations.

16. Dr VK stated that LMJ was a foster child to a biological mother who suffered from chronic alcoholism. There seems to be abuse in the form of neglect. He has significant skin cancers which says were contributed to by being left out in the sun as a child which Dr VK finds plausible. He has suffered from extreme stress during periods of his life. He separated from his wife in 2016 and states significant stress in relation to this. He moved out of home and had difficulty seeing his children. He also lost his job around this time due to an admission to hospital for investigation of a suspected cardiac issue. The stress in relation to this caused him to suffer from what appears to be a major depressive episode. His sister, aged 28, passed away in a motor vehicle accident in 2012 and he was the guardian of her son. His symptoms are likely to meet the criteria for post-traumatic stress disorder as per the DSM-V. He has been trying to turn his life around since 2017 as at that time he realised he needed to create change in his life. He realised he had significant vulnerabilities from his childhood and decided to work on those vulnerabilities. He describes himself as previously being a “very angry person” and this identity has been changed over  a period of many years. He was prescribed Men’s Choosing Change Group through the courts. He has also completed the following courses on his own accord: MAISE course through QulHN – on reducing relapse triggers, completed July 2020; Salvation Army Positive Lifestyle Program – covering anger, grief, loss, future directions, completed 2018. He also enrolled in and completed a Cert 3 in Individual Support (Disability), along with appropriate first aid courses. He continues to see Ben (his support worker) through Salvation Army to seek ongoing guidance personally and professionally. He has been a regular patient of our practice and has engaged in improving his physical health (skin cancers) and his mental health struggles.

17. Dr VK after reviewing the material provided to him would appreciate if his application could be re-assessed. He understands the reason for concern would be to do with public safety. LMJ understands the importance of screening the character qualities of the individuals who are supplied with blue and yellow cards as they have access to work with people with vulnerabilities. We discussed that the main factor for consideration would be the risk for “re-offending”. He believes LMJ presents a minimal chance of re-offending. As mentioned above he shows significant insight and remorse. He has taken active steps over a period of many years to repair various aspects of his life and continues to do so. They discussed the following steps to continue to keep him at a low risk of re-offending: ongoing reviews with Dr VK and Ben from Salvation Army and ongoing employment in his current capacity; they also explored the possibility of LMJ becoming a volunteer support worker through Salvation Army. Dr VK believes it is important to consider the trauma experienced by the individual during his early life which is likely to have caused the psychological vulnerabilities leading to the challenges he has faced. Dr VK believes that the adversities he has faced and subsequently overcome put him in a unique position to be able to provide a tremendous amount of value to his clients and the community. Attaining blue and yellow cards would assist LMJ in being able to provide a wider range of services to more complex clients.

18. Dr VK in his oral evidence confirmed that he had perused a large amount of material, including the Department’s reasons for issue of the negative notice, and was aware of LMJ’s criminal history, though not the specifics. He had substantiated that LMJ’s pain condition was as a result of a physical condition with an MRI lumbar spine. The treatment initiated was for pain and also a skin condition. Dr VK confirmed he had discussed LMJ’s previous use of cannabis to help with his pain and anxiety, and that LMJ had previously worked as a concretor and was on psychotropic medication and finds cannabis more helpful for treating chronic nightmares and the chronic sciatica causing pain in his back. They discussed TGA approval of cannabis oil. Dr VK’s understanding of LMJ’s prior use of cannabis was that he had used it for a while in a self-medicating fashion but he had no information on frequency. Dr VK confirmed that that there were risks with prescribing medicinal cannabis when someone was previously a heavy user. Dr VK did not have any concerns in relation to LMJ’s behaviour. He stated there were two ways to look at prescription harm minimisation: looking at previously known controlling use, definitely level someone with minimum use. His usage was noted: during the time of use he was compliant, not aggressive, to the doctor, and accrued no further forensic history. There were risks in prescribing if person was thought to have a number of variabilities and a diagnosis could not be determined. Here there was a previous diagnosis and LMJ saw a psychiatrist between the ages of 7 and 15. He has received conventional treatment. Dr VK stated: “if I prescribed what they did previously I would look to [a] specialist and work with him. In [LMJ’s] case he was stable during all parts of treatment.” In terms of the risk of prescribing medicinal cannabis to someone who was a heavy user for 10 years, Dr VK said there was a risk of vulnerabilities or aggression. He has seen LMJ with children and has not noticed aggression nor has any concerns of that nature. The vulnerabilities include psychosis, epilepsy or mania. There were no concerns with LMJ. If there are high-risk vulnerabilities then Dr VK would prescribe a psychiatrist. Dr VK sees LMJ once a month or more and deals with his ADHD, sciatica, chronic pain, knee injury, asthma, and disc bulge. Dr VK confirmed that LMJ was prescribed THC for his ADHD and chronic pain which was confirmed by a specialist in September 2020. The dose was increased gradually and it is in the form of an oil. There is PRN for breakthrough pain. He obtains the oil and uses it with an inhalant vaporised cannister. After some time LMJ started using cannabis in the form of flowers. Once a script is dispensed there is a period before there can be a new script dispensed. In terms of the THC oil, in vaporised form it has a pharmacological application, causing a reduction in anxiety, pain and insomnia. In terms of cognitive capacity Dr VK said that it can affect cognitive capacity but not as long as presumed. ‘Big night out’ drinking can still be quite effective. A study from Sydney confirms it is not as long-lasting. In terms of impairment Dr VK said as with other medications, such as Tramadol, “we aren’t too worried about other medications.” Dr VK explained the function of THC as the reduction in anxiety, executive function, and shortening the duration of thought processes. On use a patient can feel slightly relaxed. Larger quantities are used to sedate. Valium or diazepam are given when agitated sedation is useful. The duration is, for inhaled cannabis, 3 hours, and for oil cannabis 6 hours. In terms of LMJ’s ability to drive a study showed he was less likely to be impaired than with alcohol. There are clear instructions given to patients for driving, being that driving in Queensland with any level of THC is considered illegal. Dr VK did not know how long it was detectable after ingestion, though the impairment with inhaled cannabis was not as long. Dr VK advises patients that if they are using THC they should not drive. LMJ was prescribed oil then vaping. The CBD oil he was prescribed did not contain THC from August 2021 and he uses a .5 ml capsule in the morning. CBD oil does not produce impairment in cognition and can reverse the cognitive effect of THC; it also has the benefit of an improvement in pain. Dr VK was asked if LMJ had ever discussed his relationship with his partner and children. He stated that LMJ had struggled with anger for a large part of his younger adult life, understandably, from the trauma he was subjected to as a youngster, and there had been quite a number of problems in his life, including separation, and emotional and verbal abuse. He has completed courses in relation to this. During one he was directed to ongoing contact with BB. Dr VK was asked to clarify if he was aware of any physical abuse. He said he didn’t ask specifically if LMJ started it. LMJ had shown remorse about abuse. He was angry previously; he has changed, acknowledged that he has done things he is not happy about. He has taken steps, and while he is not perfect, he has done things actively to improve. Dr VK thought the amount LMJ had done to turn himself around was impressive. In regard to domestic violence Dr VK said it happened both ways, and one had to take it seriously, not being aware of who started it or any exact details; the history of domestic violence highlights the change in LMJ’s situation. The charges represented a turbulent time for the whole family and demonstrated the socio-economic circumstances of LMJ’s upbringing. Dr VK was not concerned clinically. Turbulent times created family challenges independent of LMJ. Simultaneously LMJ faced challenges from his upbringing, justifying his issues. Dr VK, when asked if it would happen again, stated currently there are issues not about LMJ which they are working through. LMJ has said things were done which he wasn’t happy about. Should he take all responsibility? He has shown remorse on several occasions; he was remorseful for dealing in drugs. He acknowledges the influence of peers in the environment in which he grew up, and that he cannot change what he has done. He separated from his wife in 2016, moved out, and lost his job. These events are determinants of his health, environment, and socio-economic condition. He suffered trauma from his younger days, neglect and abuse from his parents, and found himself in a bad situation. He took responsibility and has been trying to turn his life around since 2017, with a men’s change group through court, and dealing with other causes of his situation. Now he is trained as a support worker. Dr VK was asked if LMJ’s anger management issues were still present today. Dr VK stated he saw a wide range of people at clinic. LMJ did not come across as being threatening to any of our team members. He was pleasant and compliant; the clinic had no issues with him and were happy to see him and his family. He has not exhibited any inability to deal with anger.

1. The Department submitted that the material suggests LMJ’s cannabis use has been longstanding and is more extensive than his criminal history suggests. The repeated nature of his offending despite his increasing age and maturity, being apprehended by police and coming before the courts, raises questions about the judgment of LMJ when using or attempting to source illegal drugs. The Department contended that LMJ has a casual attitude to law-breaking and his continued engagement in illicit activity makes him a poor role model for children. In his life story LMJ stated that he was introduced to cannabis in 1996. In the years that followed, his life took a negative turn and he met some ‘shady characters’. He stated in his life story he turned to cannabis in 2012 following the passing of his sister. During this period he sustained a workplace injury and self-medicated with cannabis. Following a further workplace incident in 2015 he got pain-free using cannabis. In relation to his most recent offence he asserted his cannabis use was in relation to “pain control and his attention deficit disorder”.

2. The Department notes and I confirm that at the hearing LMJ confirmed his initial introduction to cannabis was at age 15 in a social setting. When asked to clarify the extent of his use, he asserted the amount he has consumed over the years has been dictated by financial factors, but the frequency of his use has been consistent, namely every day/and or second day for the past 20 years. I note this was confirmed by BL, LMJ’s wife, in her evidence at the hearing. He asserted “I only stopped smoking cannabis twice since I was 15, once to join the army and another time when I had a hernia operation.” He started that since his eldest daughter’s birth he had isolated his cannabis use to the “back shed”. He confirmed that he engages in cannabis use during the day and in the evenings. Given he and his wife share parental duties he would frequently resume his fathering duties immediately after smoking cannabis in the shed.

3. The Department noted that LMJ asserted that he was approved for medicinal cannabis and cannabidiol (CBD) oil in 2020 and that he asserts that has effectively ended his illicit use of cannabis, he is now able to “live without fear of being prosecuted”. That when asked if his primary concern in transitioning to medicinal cannabis was that he would no longer come to police attention, he stated “that this was one of my concerns”. In or around September 2020, LMJ was prescribed a CBD oil, which contained tetrahydrocannabinol (THC) the main psychoactive compound of cannabis. This was confirmed by LMJ during his oral testimony.

4. The Department notes in regard to Dr VK that LMJ asserted that he was very open and honest with him in respect of his past cannabis use and that he understood that he was using it to treat his attention deficit disorder. It notes that it is unclear whether LMJ’s disclosure was to the extent that he had been using cannabis daily and/or every second day for 20 years. The Department observed that there is no independent evidence before the Tribunal to substantiate who made LMJ’s ADD diagnosis, when it was made and/or what treatment was recommended at that stage. At the hearing LMJ confirmed that excluding the treatment sought by his parents and received when he was a teenager, he has never engaged in any medical intervention in respect of his ADD. The Department contended that LMJ’s sudden prioritisation of his ADD treatment, in the form of medicinal cannabis, appears to be more motivated by his long-standing use of the substance, as opposed to any genuine treatment attempts. The Department notes that LMJ’s pursuit for medicinal cannabis commenced in early 2020 and that “he was frustrated when his doctor would not listen to [him] about medicinal cannabis”. However after speaking to a friend whose wife was prescribed medicinal cannabis he was referred to her doctor, Dr VK.

5. The Department submitted that Dr VK in his oral testimony asserted that LMJ was initially prescribed a 100ml bottle of CBD oil and his daily dosage was 0.02 ml (to be consumed at night). LMJ was then prescribed scripts for cannabis flower in March 2021, August 2021, and September 2021, which enabled LMJ to obtain 15 grams of cannabis flower with each script enabling three (3) and five (5) repeats. Dr VK had been unable to clarify whether LMJ had obtained repeats nor could he clarify the daily amount LMJ was using, simply “you have it as required…it is for breakthrough pain”. LMJ had confirmed at the hearing that he filled his scripts every nine to ten days, thus confirming that he consumed a gram to a gram and a half per day. Dr VK had assessed a patient’s past cannabis use as recreational if it was obtained illegally but for self-medicating purposes. Dr VK had also opined that medicinal cannabis use does impair a patient’s cognitive capacity, with typical side effects including a reduction in executive functioning, sedation and/or relaxation. The Department stated that Dr VK reiterated that any patient, LMJ included, who is utilising medicinal cannabis, which contains THC, would be prevented from driving as any detectable level of THC is illegal when operating a motor vehicle.

6. The Department submitted that cannabis is a complex substance, as reflected in Dr VK’s letter. Different strains have different potencies and its major compounds, such as delta-9-terahydrocannabinol and cannabinol, have opposing effects. It is of concern that during the period in which LMJ “supplemented” his use, he had little to no control over the strain he was ingesting, its potency or the resultant pharmacological effect. Cannabis use, particularly use which is not overseen by a treating practitioner, can be associated with maladaptive behaviour and psychological changes, such as euphoria, anxiety, panic and impaired motor coordination, attention and memory, all of which have the capacity to place children under the care of a cannabis user at rick of neglect of their immediate physical and emotional needs.

7. The Department submits that LMJ’s continued use of cannabis, irrespective of how it is sourced, remains a prevailing risk factor.

   (a)Firstly, there must be some question as to whether LMJ has driven a vehicle whilst under the influence of cannabis. Dr VK’s oral testimony was to the effect that a patient utilising medicinal cannabis should not drive. This is clarified by the Therapeutic Goods Administration (‘TGA’), which confirms that “THC can be detected in urine many days after the last dose. It may take up to five days for 80 to 90 per cent of the dose to be excreted”. Thus, the only means by which the Applicant could ensure he does not drive under the influence of medicinal cannabis is not drive at all. LMJ had acknowledged at the hearing that one of his responsibilities as a father is to transport his children, in his vehicle, to school, appointments and/or any other commitment of this nature. LMJ had accepted that it is illegal to operate a motor vehicle with any detectable level of cannabis. He further accepted that he has used cannabis daily and/or every second day for the past 20 years, there is “always that possibility” he has operated a vehicle with his children as passengers, with a detectable level of cannabis in his system. The Department contended that LMJ’s recurrent conduct, reflects a blatant disregard for lawful behaviour, and compliance with law enforcement. Respect for the law and lawful behaviour is critical for adults working with children as it contributes to the creation of safe and protective environments for children.

   (b)Secondly, LMJ has not articulated any risk management strategies he presently implements in respect of minimising his children’s risk of exposure to his use of medicinal cannabis. At the hearing LMJ confirmed that his cannabis use is not hidden from his children”. When asked if he agreed the concept of legal and illegal cannabis is fairly complex, and could easily cause confusion for a child, particularly given he has engaged in both, he responded: “no, I think going back a few years ago maybe...not now because it is so prevalent.” The Department submitted that an adult’s tacit approval of drug use by their example may have the effect of normalising this conduct in a child’s impressionable mind. Further, any attempts by LMJ to explain the differences between illegal cannabis and medicinal cannabis to his child or other children would be beyond their comprehension and inappropriate.[26] LMJ confirmed that he does engage in medicinal cannabis use in close proximity to his children, in the backyard.

   (c)Thirdly, and this the Department considers perhaps the most concerning factor, medicinal cannabis use may affect a person’s ability to care for children, as side effects of THC include tiredness and impaired cognition from the sedative effect. This adverse impact on one’s ability to behave is reflected in the conclusion that LMJ should not operate heavy machinery after he has ingested his prescribed cannabis. Blue card holders are expected to be able to regulate their behaviour and provide care and a protective environment for children.

   (d)Fourthly, while LMJ has recently engaged with Dr VK, the Department notes that there is limited evidence to show that prior to seeing Dr VK, LMJ effectively engaged with any professionals to address the triggers for  his prior cannabis use. The Department submitted that these features are prevailing risk factors.

   [26]RWH v Director-General, Department of Justice and Attorney-General [2021] QCAT 407 at [170].

8. LMJ submitted that he had previously used cannabis as a coping mechanism. He suffered a traumatic childhood, a divorce, and the death of his sister. He found that cannabis assisted him with the release of anxiety and assisted him to relax and to sleep at night. Additionally, he has suffered from significant mental and physical health issues. He found that cannabis use did help to alleviate his suffering from his physical and mental health conditions. In the past he sought treatment through the Salvation Army Positive Lifestyle Program, the Men’s Choosing Change Program and the MAISE Program. As a result he says he is no longer reliant on cannabis as a psychological coping mechanism. Although he was convicted for possessing cannabis one month after completing the Positive Lifestyle Program, he demonstrated an understanding of the severity of his offending behaviour, and has not committed further offences now that he is receiving adequate treatment for his medical conditions through prescribed medicinal cannabis. He submitted that in the about 18 months since receiving his prescription, he has not supplemented his intake with illegally obtained cannabis or supplied cannabis to his friends. He says this demonstrates that the treatment of his past reliance on non-prescribed cannabis has been successful. He referred the Tribunal to Dr VK who informs the Tribunal that the prescription for medicinal cannabis ‘should not cause any impairment with his capacity to work’ and thus his medicinal cannabis use does not pose a safety risk to people. He submits that he ‘realised cannabis was affecting his life in a negative way’ and this was not disingenuous or a failed rehabilitation attempt considering his later prescription for medicinal cannabis. He accepts that his illegal cannabis use negatively affected his life due to the financial strain caused by the imposition of fines and the emotional impact of repeated convictions and financial burden on his marriage. He submits that now he has acquired access to cannabis through prescription, he will be able to treat his mental and physical health while eliminating the negative effects that illegal cannabis use has had on his life and relationships. He submits that his children were not exposed to his illegal drug use and were not aware of the single supply offence. He has never cared for his children while under the influence of drugs, and that since attending the Men Choosing Change Program, he can consistently resolve conflict without resorting to violence, evidenced by the fact that he has not breached the domestic violence orders to which to which he was the respondent and no new domestic violence orders have been made.

9. The Department further submits that LMJ’s material focusses on his cannabis use and fails to meaningfully address or acknowledge his domestic violence behaviour and the harm he has caused. In his life story, he asserts “I will always be upfront about my criminal history especially my cannabis use” and further “my mistakes are just that, mine and I will always own them”. The Department acknowledged that this “ownership” and acceptance by LMJ is a protective factor. However, the Department holds concerns as to the depth of LMJ’s insight and understanding of how his cannabis use, both illegal and legal, has adversely affected his capacity to care for his children. The Tribunal has observed that “a person’s behaviour takes on greater magnitude when viewed in the context of protecting children”.[27] Working with children creates an obligation to act responsibly and protect children, including from potentially stressful or threatening situations.[28] It is therefore relevant to consider the impact of an applicant having failed to provide a protective environment over an extended period to children in their care.

   [27]YR v Director-General, Department of Justice and Attorney-General [2021] QCAT 139.

   [28]JA v Chief Executive, Public Safety Business Agency [2015] QCAT 215.

10. LMJ provided letters in support of his application from various people some of whom were subject to cross-examination at the hearing. BR, a former employer who employed him in April 2017, had knowledge of the 2019 charges and says he supported LMJ at this time and kept him employed. He noted that he was always polite and professional to customers and took great pride in work. He stated that LMJ is a family man who loves his three daughters and his wife and he has a strong rapport with those around him, and that he has always known LMJ to own up to his mistakes. RB had known LMJ for 12 years, 10 of those as his supervisor.  In that time he has found LMJ to be a reliable and responsible person to work with. During his employment LMJ had some issues with a cannabis charge which they were aware of and worked with him to keep him employed and on track. Despite these issues his work reliability remained the same. He had also known LMJ on a personal level due to a shared interest and had found him to be  a good and genuine person. He has always tried to be the best person he can be in his personal life especially with his three daughters and wife of 12 years. OHL, the HR manager for a disability service provider, stated LMJ has been a preferred support worker with many of their aged care clients however he also has the ability to build rapport with people of any age very quickly. In the past 6 months working with him LMJ has shown he is exceptionally reliable, honest, professional and has a high degree of integrity. He is an asset to her team and she can confidently recommend him for any position or undertaking he wishes to pursue. OHL in her oral evidence confirmed that LMJ had asked her to provide a letter because he was having difficulty obtaining his blue card. She could not recall being provided with a copy of the Department’s reasons documents. She confirmed that she based her letter on her interactions with LMJ. She was aware of his involvement with the police and courts through a police check showing a cannabis charge in 2014. She was aware of domestic violence. That there was an incident a number of years ago with his wife. She did not know the year they had an argument. She knew both of them, professionally, and his wife had said it got of control and that it came from him. The Department noted that OHL advised that she had not read or been provided with the Department’s reasons document and was largely unaware of LMJ’s criminal charges in regard to cannabis around 2013.

11. CN stated he had known LMJ for 25 years and has been a close friend of his since high school. He stated that he has watched him grow into a kind, confident, honest, reliable, hard-working man. He is a well-respected man who has high morals and values, not only in his professional life but also in his family life. That it is fair to say that LMJ has faced some obstacles along the way but has risen above and come out a wiser, stronger person for it. EM stated he had known LMJ for 23 years through mutual interests. That he had seen him go through personal struggles in his life and he had been there to help him through these. During these times he had known LMJ to take on his mistakes as his own and try to better himself in some way. He lived with LMJ for 5 years and had his 2 children living with him and that at no time was he concerned with leaving them in LMJ’s care when needed. He stated that they had grown up to trust LMJ and know they can call him if ever in need. He has watched LMJ have his own children and get married and know he would do as much as he could for his family and those around him. SR also has known LMJ for 23 years and described him as a compassionate and empathetic person who puts others before himself. He has had some rough times but always remained a genuine hard-working family-based man. LMJ is godparent of one of his children and one of the few friends that would hold and spend time and was concerned with the wellbeing with another of his children who had cerebral palsy. SR had recently completed a TAFE certificate 3 in Individualised Support and from what he has learnt and knows of LMJ he considers he would make a great support worker with a great moral compass and ability to make adjustments and changes for the better in lives of people with needs. He has never known LMJ to discriminate, belittle, be judgmental, or think himself above any person, as long as he had known him, LMJ had been a hardworking person dedicated to his family, and SR stated he was sure he would make a great asset to any company. WP has known LMJ for over 20 years. In that time he has watched him grow mentally and physically into the kind and caring person that he is today. He has been through a lot more than anyone should have to endure in his early years, which would have stopped most people completely. But LMJ worked hard, kept his head down and sought help to get through difficult times. He has watched LMJ develop himself with as many tools as he could find and from what he has seem he has done an amazing job. He applauds LMJ for getting into the position he is in today, stating he had worked hard and supported his family through thick and thin, that he was a good friend, and that he always does his best to support anyone in need. LMJ has also cared for WP’s wife in times of need when he could not be there for her. He states that LMJ might have a colourful past but the person he is today reflects nothing but respect, kindness and support for family and close friends. LMJ has done his best to change his life around and has done so in many ways, worthy of commendation. WP states he would employ LMJ in a heartbeat because he knows the traits he possesses would be an asset to any company.

12. SV had known LMJ for 5 months since they had both studied the Certificate 3 in Individual Support. She described him as a very laudable man who knows what he wants to achieve and will not stop until he achieves his goal. He is very genuine, compassionate, caring and patient, he has a fun sense of humour, and he was always punctual. He is very open about his life and takes full ownership of any mistakes he has made in the past. She has never met a man so open about his feelings, he is very social and easy to talk to, trustworthy and approachable, he is committed to making change, not only for himself but for his wife and children as well. She states he only wants to be the best possible version of himself. A similar letter of support was provided by HK, another student in the Certificate 3 course. MD was the trainer at the Certificate 3 course. She stated that during LMJ’s time as a student she never questioned his integrity or intent to want to make a difference within the community sector. LMJ was an integral part of the classroom structure, always reliable, honest and trustworthy. At no point did she have to question LMJ’s actions as he has taken responsibility and accountability for all of his previous life experiences and challenges. He has been open and honest about his past and in no way has this ever affected his commitment and dedication to move forward positively with his life.

1. All those who provided letters of support recommended LMJ for any position he may seek.

2. BB, the facilitator of the Positive Lifestyle Program with the Salvation Army, provided a letter confirming that LMJ completed it in January 2019, completing all 8 of the sessions, personal-journalling style program, designed to enhance participants’ self-awareness and to give them a better understanding of personal life skills. He stated it covers areas such as self-awareness, anger, depression, grief and loss, stress and problem solving. Participation in the program is voluntary, so participants undertaking it need a willingness and desire to look at their life in a holistic way. LMJ displayed a high level of commitment to the program, showing reliability in attending sessions, and having his workbooks completed prior to the questions posed in each workbook and commented that he found the program very useful. In his oral evidence BB confirmed that he had not been provided with the Department’s statements of reasons and thought that LMJ’s blue card refusal was as a result of drug charges though LMJ had not gone into detail. He advised that LMJ had been referred to the vulnerable persons unit of police. BB confirmed that LMJ spoke about things at home in regard to his partner and how he would like things to change. LMJ had told him about some outbursts, that he did know better, and would like to change. BB was aware of domestic violence in the relationship but not the details. BB described the program and noted that it was not their job to come up with strategies, but that the participants came up with them, and that the strategies related to how to exercise patience with managing at home, and encourage first that LMJ step away. BB stated that he had maintained contact a couple of times a year with LMJ and that things had improved at home and work and he can exercise patience, engaging rational behaviour, which is a goal he wants to act on to be a better person. He is very committed to working in role where he is helping people, having studied a Certificate in disability care. He feels gratitude and fulfillment in this work. He is a good husband and father. BB was not aware of who else LMJ turned to for support.

3. The Department noted in regard to BB that he had not read or been provided with the Department’s reasons document. BB asserted that LMJ had been unable to obtain his blue card to drug related charges but could not with any specificity articulate when these offences were committed or the circumstances. BB confirmed LMJ commenced the course in 2018, concluding the eight sessions in early 2019. Whilst LMJ’s participation in this program is somewhat protective, the Department notes LMJ continued to offend despite his participation in the program. 

4. The Department submitted that as BB and OHL described incomplete accounts of their understanding of LMJ’s criminal charges in light of their absence of knowledge of the extent of LMJ’s offending as whole, or other issues of concern, namely the domestic violence behaviour, the Tribunal should place limited weight on the evidence of LMJ’s witnesses. The Department also submitted that as none of the other witnesses were made available for cross-examination in accordance with s 95 of the QCAT Act to enable their evidence to be tested the Tribunal should therefore place little to no weight on the evidence of these witnesses.

5. BL provided a statement to the Tribunal and gave oral evidence. She confirmed that there had been a domestic violence incident in November 2016 which had caused LMJ and her to separate through a court order with a no contact order being placed on LMJ regarding the (three) children and herself. She said that though this was a very difficult and emotional time for her, at no time did she ever feel that the kids were in danger then or at any time during their relationship. She noted that the restrictions were lifted very early on regarding the children as LMJ has never nor would ever intentionally hurt them. She applied not long after to have all restrictions bar the compulsory ones removed so that they could start to move forward to repair their relationship. BL stated that she and LMJ had been together for 18 years and been married for 13 years, having married in 2008. They had three daughters, born in 2005, 2007 and 2011. During this time there was another incident where they had an argument and a neighbour called the police and there was a DVO, but not at her request. She noted that LMJ had always held a job with 10+ years at one employer and he had always provided for herself and the girls. She stated that LMJ has had many challenges in his life to overcome: serious early childhood trauma, the separation of his parents, and the death of his sister, with whom he was fostered in 2012, which has resulted in him being placed on medicinal cannabis. She has seen LMJ take these challenges head on after their DV incident in 2016 and states that he has since become a better father, partner, friend and family member than he was by taking on his emotions and dealing with them. He has completed courses to deal with himself and still sees Ben from the Salvation Army regularly as a support person, and he also has the support of a great group of individuals whom have all seen him progress in his life. LMJ had always wanted to do something more than just concreting and always had a passion for helping others in need. He was always patient and caring with two of his friends’ children who suffered from severe disabilities. She stated that she had often suggested LMJ should try something in that field of work. In August 2019 he started his Certificate 3 in Aged Care and Individual Support, and that in the short time of doing the course she had seen how much LMJ enjoyed this field of work – that it was more than just having to go to work to pay bills, but something he really found he enjoyed, and that he loved to go to work each day to help others. She states that she hoped, being a witness, that the situation between LMJ and herself would have no impact on how he would work as a carer.

6. The Department noted in regard to BL that she had confirmed during her oral testimony that she and LMJ had been together for 18 years. She briefly summarised the 2016 domestic violence incident whilst confirming that she was still supportive of LMJ’s blue card application. She confirmed LMJ’s cannabis use had been consistent every day and/or second day for 20 years.

7. The Department states LMJ’s material filed in these proceedings failed to address the domestic violence perpetrated by him in 2006 (sic) and 2016. The Department submits LMJ’s failure to recognise how his actions affected the aggrieved and his children remains a risk factor. This is demonstrated by LMJ’s assessment of his relationship at that time. “In 2017 my wife and I separated for 9 months while we worked on our issues”. Further, he asserted he “completed a Men’s Choosing Change course…to deal with life’s curve balls better.” While it is true LMJ attended the Men’s Choosing Change Program, he fails to mention that his participation was ordered by the court following the imposition of the 2016 domestic violence order. In the Department’s view this suggests a lack of insight into the seriousness of his domestic violence and why the nature of such behaviour would present a concern for child-related employment. The importance of an applicant possessing genuine insight as a protective factor was noted by the former Children’s Services Tribunal in Re TAA.[29] The Tribunal observed that:

   …the issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend then a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adult’s around them having insight into their actions and the likely effect on children.[30]

   [29][2006] QCST 11.

   [30]Ibid, [97].

8. In the Department’s submission, LMJ has not demonstrated any reflection on his choices regarding risk management or the inadequacy of his decision-making process. In the absence of any proper demonstration to the requisite degree of insight, the Department submits that LMJ may engage in conduct, particularly as it related to his cannabis use, which is similarly harmful to children without LMJ knowing it to be harmful. The Department submits that the evidence before the Tribunal and LMJ’s oral testimony indicate that he has not acted protectively in relation to children in his care, and that he does not have the requisite insight to reliably assess risks and consequences of harm in situations involving children.

9. The Department further submitted that the effect of issuing a blue card is that LMJ is able to work in any child-related employment or conduct any child-related business, supervised or unsupervised, regulated by the WWC Act, not just for the purpose for which he has sought the card. If issued with a working with children clearance and a blue card, he could work with children of any age, gender or vulnerability. The Tribunal has no power to issue a conditional blue card and once issued, a blue card is unconditional and fully transferrable across all areas of regulated employment and business.

10. The Department acknowledged that there are a number of competing human rights relevant to the decision before the Tribunal. These include the human rights of LMJ and the human rights of children, specifically the right of every child to “the protection that is needed by the child, and is in the child’s best interests, because of being a child” as provided for in s 26(2) of the HR Act. The Department submits, however, that a decision that LMJ’s case is an exceptional case will be nevertheless compatible with human rights. This is because, despite any limit the decision places on LMJ’s human rights, the decision will be justified by the factors outlined under s 13 of the HR Act. The decision will be justified, inter alia, because it will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which is itself a human right. Furthermore, any limitation on LMJ’s human rights is consistent with the object, purpose and paramount principle of the WWC Act, that is, the welfare and best interests of children are paramount.

11. The Department submitted that the decision before the Tribunal is not whether LMJ can progress his career in the disability support industry. The decision before the Tribunal is whether, having regard to the paramount principle under the WWC Act, LMJ’s case is an exceptional case in which it would not be in the best interests of children for him to be issued a blue card. The Department submitted that the object of the WWC Act and the principle that the welfare and best interests of a child are paramount support a precautionary approach to decision making in child-related employment matters. The Tribunal must consider the transferability of notices under the WWC Act when having regard to the best interests of children. The Department submits that overall, the material before the Tribunal raises serious questions about the risk LMJ may pose to children and young people in his care. It further raises questions about his regard for the rights, interests and wellbeing of others, and his respect for the law, lawful behaviour, and lawful boundaries. Further, in the Department’s submission there is little evidence to suggest LMJ has implemented any practical strategies to appropriately address the concerns raised at the time of issuing the negative notice. The Department submits that the Tribunal should find that this case is an exceptional case such that it would not be in the best interests of children and young people for him to be issued with a blue card.

12. LMJ submitted that the Department must make decisions compatible with human rights unless ‘unless it could not have acted differently or made a different decision because of a statutory provision…or otherwise under law.’ ‘Compatible with human rights’ is taken to mean that the decision does not limit a human right or limits a human right in a way that is “reasonably and demonstrably justifiable in accordance with s 13”. The right to privacy and reputation detailed in s 25 of the HR Act may include the right to work.[31] Considering the potential limit of the decision on his human rights, the Department’s decision is not compatible with human rights as it is not ‘suitably and rationally connected with the achievement of protecting the safety of people…’  LMJ does not pose a risk to people and thus this exclusion is made in error.

    [31]ZZ v Secretary to the Department of Justice [2013] VSC 267 [203].

Discussion

1. LMJ had a difficult start to his life and as a result had anger issues noted by Dr VK and which he acknowledged. I note that after some time with his birth mother in 2020 he was able to understand her situation and this put his own anger issues in perspective. He also had a diagnosis of ADD the treatment of which with Ritalin he did not tolerate well. He started using cannabis when 15 and found that it assisted with his ADD. LMJ has a long history of drug offences and he and his wife acknowledged that he has used cannabis on a daily/or every second day basis for 20 years. He gave various reasons for his use of cannabis including ADD, pain and anxiety, and the death of his sister. During this time he has come before the Courts in 1999, 2000, 2014 and 2019. It was made clear to him in 2014 that if he was charged again he would receive a conviction. The Magistrate went to pains to acknowledge that LMJ had a need to use cannabis to deal with ADD and that he must seek suitable treatment as under the current law he was committing offences. In 2014 LMJ acknowledged that he only had a certain amount of cannabis in his possession because that enabled him to be subject to drug diversion. LMJ clearly did not take the Magistrate’s advice and was convicted of possession of cannabis and utensils in 2019; at that time he also had possession of a much larger quantity of cannabis as apparently his need had increased. At the time of the 2014 and 2019 offences LMJ was living with his wife and three daughters and they were present when his home was raided. It also appears that there were quantities of cannabis in areas of the house that were accessible to his children in 2014.

2. LMJ has continued to use cannabis but now he has found a source of medicinal cannabis so his possession and use of it in accordance with his doctor’s prescription is now legal. It was made clear in evidence though that if LMJ were found to be driving under the influence of cannabis this would still be an offence. I note that I am not aware whether this would be a drug offence or a driving offence as this matter was not dealt with in submissions.

3. LMJ’s doctor noted that the Tribunal’s concern would be that he would reoffend. LMJ himself acknowledges his offending behaviour and considers that now that he is using cannabis legally the problem has been dealt with. The Department raised issues about LMJ continuing to use cannabis legally or illegally and the effect that would have on his ability to care for children including his own and the risk of him being found to be driving under the influence of cannabis. There is another fundamental issue: LMJ has shown that he has a disrespect for the law and has been prepared over a long period to expose his wife and children to his offending behaviour. This shows a disregard for the law and the Tribunal is concerned that LMJ in child-related employment may act in a similar way. This is in accordance with the Department’s submissions in regard to respect for the law and lawful behaviour. That this is critical for an adult’s working with children as it contributes to the creation of a safe and protective environment for children. Of note is that LMJ undertook a course run by the Salvation Army, the Men Choosing Change Program, at which he was successful, and he still has the support of the facilitator BB. Yet very soon after he finished that course he was raided by the police and the 2019 conviction was the result. Therefore, though LMJ may appear to be acting appropriately this at times is only superficial and his underlying respect for the law and lawful behaviour has not been proven.

4. The original material which the Department relied upon in regard to LMJ only related to his criminal history including property and drug offences. During the course of the matter the Department sought production of material from the police and courts in regard to domestic violence matters. LMJ had been the respondent in domestic violence orders in 2007, 2016 and 2018 with the current order to expire in 2020. He had in his life story noted he had a separation form his wife in 2016, though he did not acknowledge that this was as a result of an incident subject to a domestic violence order. It is clear that there was actual physical violence by LMJ against his wife in 2016 though the stories differ. In 2007 BL stated to the police that the aggressiveness of LMJ may be related to his illicit drug use. I note that BL supports LMJ and his desire for a blue card. LMJ undertook a MAISE course to assist him to deal with his anger issues. There is talk of him having a strategy to deal with confrontation, of walking away. I agree with the Department’s concerns having regard to the domestic violence information raising concerns as to LMJ’s ability to act protectively of children and young people and provide them with a protective environment. I accept that children are inherently vulnerable and their welfare depends on adult carers being able to recognise risk and act in an appropriate and protective manner, that they must be vigilant as described in CEB.

5. LMJ provided many letters of support though only some of the people were available for cross-examination so their evidence could not be tested in terms of their knowledge of his offending amongst other things. He clearly has a group of long term supportive friends who put him in the best possible light though their descriptions of him being a law abiding person do not match his record of offending behaviours. He clearly presented well in his Certificate 3 in Caring Studies as he had support from one of the trainers and fellow students. I do not doubt that LMJ presents well and that he is well-meaning and wants to be able to perform the caring role that he considers he is best suited to. While LMJ’s friends support his ability to deal with children having regard to his domestic violence history, I will place more weight on the matters which have been subject to the Court’s consideration.

6. My concern is that his long history of offending behaviour and domestic violence are risk factors in regard to his ability to provide a safe environment for children, and while he may be using medicinal cannabis, it is his propensity to disregard the law and the question of whether he has dealt with the issues that lead him to respond aggressively which remain risk factors. When it was put to Dr VK he said LMJ had not displayed aggression when he was in his practice. That is not to the point. The concern is how LMJ will act when he is in a situation caring for a child where he feels stressed and needs to deal with that stress in a way which does not put the child at risk. LMJ will need to do further work with a professional to show that he has complete insight into his triggers and techniques to deal with them so that the risk to children can be obviated.

7. The paramount concern for the Tribunal is the welfare of children and where there is a risk that granting of a blue card to an individual will place the welfare of children at risk then the Tribunal should act in a precautionary manner. Therefore, I am satisfied, having regard to LMJ’s offending and domestic violence history, that this is an exceptional case and it would not be in the best interests of children to issue LMJ with a blue card.

1. Considering the human rights issues in this case, while LMJ’s right to work in child related employment has been compromised, it is on the basis that the rights of children which are paramount to his under the legislation require that his rights be limited.

Order

1. The decision of the Director-General, Department of Justice and Attorney-General that LMJ’s case is “exceptional” within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act2000 (Qld) is confirmed.