LRM v Director-General, Department of Justice and Attorney-General
[2024] QCAT 98
•12 February 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
LRM v Director-General, Department of Justice and Attorney-General [2024] QCAT 98
PARTIES:
LRM (applicant)
v
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent)
APPLICATION NO/S:
CML198-22
MATTER TYPE:
Children’s Matters
DELIVERED ON:
12 February 2024
HEARING DATE:
27 April 2023
HEARD AT:
Caloundra
DECISION OF:
Member Bayne
ORDERS:
The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice
CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – applicant seeks a review of decision to cancel a positive notice and issue a negative notice – blue card – the applicant convicted of two offences – other relevant information exists – whether an exceptional case exists
WORKING WITH CHILDREN (RISK MANAGEMENT AND SCREENING) ACT 2000 (QLD), S 5, S 6, S 221, S 226, S 354
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2009 (QLD), S 19, S 20, S 21, S 24, S 66(2)
HUMAN RIGHTS ACT 2019 (QLD), S 13, S 15, S 21, S 23, S 25, S 26
APPEARANCES &
REPRESENTATION
Applicant:
Respondent:
Self-represented
Mr O’Neil
REASONS FOR DECISION
Background
The Applicant had been issued with positive notices and blue cards on 7 November 2006 and 30 July 2010. However, in January 2012, following notification from the Queensland Police Service (‘QPS’) that she had been convicted on drug charges in the Townsville Magistrates Court, the Respondent commenced a reassessment of the Applicant’s eligibility to hold a blue card. On 28 August 2012 the Respondent cancelled the Applicant’s blue card and issued, with reasons, a negative notice.
On 2 November 2021, the Applicant made an application to cancel the negative notice. On 17 June 2022 this was refused: the Respondent determining that the Applicant’s case was an ‘exceptional case’ in which it would not be in the best interests of children for her to be issued with a blue card. The Applicant was provided with written notice of the decision, the reasons, and relevant review information.
On 1 July 2022, the Applicant filed an application in the Queensland Civil and Administrative Tribunal to review the Respondent’s decision. The Applicant contends that not having a blue card limits her study opportunities and employment prospects. The Applicant states she has studied counselling and hopes to develop a career to help people who come from difficult and complex backgrounds.
The Tribunal review was held on 27 April 2023, with final submissions due within a few months.
Legislative Requirements
QCAT can review a decision to issue a negative notice under the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld), this hearing is a fresh hearing with the purpose of producing the correct and preferable decision on the evidence before the Tribunal.
The term exceptional case is not defined in the WWC Act. Whether a case is exceptional is to be determined by considering the circumstances of each individual case, having regard to the legislative intention of the Act. In the course of this review, the Tribunal must consider the totality of the applicant’s circumstances to determine if an exceptional case exists. The Tribunal’s decision must be consistent with the WWC Act’s objects that include promoting and protecting the rights, interests, and wellbeing of children in Queensland and be in accord with the principle that the welfare and best interests of a child are paramount.
Blue cards are given without condition so if the Applicant were to be issued with a blue card, she could work in any area of child-related employment, whether supervised or not.
In summary, in determining the correct and preferable decision, the Tribunal needs to be satisfied on the balance of probabilities that an exceptional case exists, or that it does not exist. Neither any prejudice or hardship that the Applicant might have experienced, or would experience by not holding a blue card, are irrelevant when considering the case nor is any benefit that children might derive by interacting with, or having access to, her.
Where a person has been charged with, or convicted of, an offence, the Tribunal must have regard to considerations prescribed by section 226 of the WWC Act in determining whether an exceptional case exists.
Where ‘other relevant information’ exists, the Tribunal must have also regard to considerations prescribed by section 228 of the WWC Act.
In this case, both sections apply.
Section 226(2) of the WWC Act
The Applicant has been twice convicted within the meaning of ‘conviction’ under the WWC Act.
Offences in 2011
The offences heard in the Townsville Magistrates Court on 3 November 2011 were:
1.Producing dangerous drugs
2.Possessing dangerous drugs
3.Possess utensil or pipes etc that had been used.
The Magistrate imposed a 9-month good behaviour bond and required the Applicant to enter a recognizance of $500. No conviction was recorded.
The Court transcript of the proceeding on 3 November 2011 records that the Magistrate had advised the Applicant:
On account of your plea of guilty, and I have regard to your character, your age, your health and your mental condition. I have regard to the nature of the offence and the extenuating circumstances under which it was committed.
The Respondent has written:
imposition of this penalty suggests that the circumstances of the offences were not considered serious enough to warrant a custodial penalty or their disclosure to third parties.
The Tribunal agrees with the submission of the Respondent that the above offences were neither serious offences nor disqualifying offences under the WWC Act. Nevertheless, the Tribunal concurs that it was clear that Parliament intended that all offences on a person’s criminal history should be considered in determining their eligibility to work with children in regulated employment.
Offence in 2022
On 4 July 2022 the Applicant, whilst driving a motor vehicle in which her underage daughter was a passenger, was intercepted by the QPS on the Sunshine Coast. She was observed to have bloodshot eyes and that her speech was slow in responding to questions; a saliva analysis returned a positive result for a relevant drug.
The Applicant admitted to the QPS that she had smoked cannabis on the previous night and could offer no emergent reason for driving a motor vehicle with a relevant drug in her system.
On 18 August 22, the Applicant was convicted of ‘drive while relevant drug is present’.
Section 228(2) of the WWC Act
Two components of other relevant information were involved:
1.Material provided by the Department of Children, Youth Justice and Multicultural Affairs (Child Safety) referring to 2008-2018; and
2.The use of cannabis on 3 July 2022 in regard to the traffic offence incurred on 4 July 2022
The involvement of Child Safety
A series of interactions from 2008 to 2018 between Child Safety and the Applicant are on record, with repeated notifications raised about the children in the Applicant’s care. The material contained many examples which predominantly related to concerns regarding the Applicant’s mental health, substance abuse, and her ability to parent and meet the needs of her children. As early as 2008, concerns were recorded as to the Applicant’s levels of depression, suicide ideation, and thoughts of harming her children.
Various reports from 2016-18 made references including:
(as to the Applicant) being very dysfunctional, heavily medicated, intoxicated with a history of substance abuse and depression
An emerging pattern of (the Applicant) threatening to relinquish the care or harm either one of both in times of crisis
(the Applicant’s) intoxication and her history of substance abuse and depression, and further in relation to her not being able to care for her son who was violent and out of control.
In one summary of an assessment, Child Safety considered that the Applicant’s children had:
suffered cumulative emotional and psychological harm as a result of the Applicant’s mental health issues and dysfunctional parenting.
By 2016, Child Safety noted that the family were engaging with services, and by 2017 mention was again recorded that the Applicant had engaged with multiple support agencies including for her own mental health.
By November 2017, the behaviours of the Applicant’s son were escalating even with support services in place. Child Safety considered that it was clear that his abusive behaviours were becoming more and more challenging; the son was described as violent and out of control.
However, despite all the notifications and concerns, Child Safety repeatedly found that the children had a parent who could protect them and meet their needs, with the support of various services.
One safety assessment conducted by Child Safety in 2017 recorded outcomes of a child not in need of protection. Following another assessment, Child Safety found that the child did not meet the criteria for being at an unacceptable risk of harm:
with the identified protective factors strongly outweighing and mitigating the risk factors present at this time … which included (the Applicant’s) engagement with multiple support agencies.
The Tribunal acknowledges that the interaction with Child Safety over many years did directly involve the welfare and wellbeing of children (the Applicant’s). However, Child Safety did not find that either of the Applicant’s two children was in need of protection.
By 2023 both children had reached their majority; the son was living independently, and a Protection Order naming the son as the Respondent and the Applicant as the aggrieved was in place 2021-2026.
The Tribunal had no current concerns as to the Applicant’s past interactions with Child Safety.
The use of cannabis on 3 July 2022
The Applicant’s use of cannabis on 3 July 2002 will be discussed in detail in later sections of these reasons.
Next, the Tribunal will consider the Applicant’s mental health issues between 2008-2022 as well as the witness statements and evidence.
The Applicant’s Mental Health 2008-2022
Firstly, the Tribunal acknowledges, as does the Respondent, the traumatic and devastating circumstances which impacted the Applicant (and her family) in 2011. The Tribunal also recognises that these would have considerably, and not unexpectedly, affected the Applicant’s history and mental health for years.
The Tribunal, and the Respondent, also acknowledge the sensitive and complex nature of the circumstances surrounding the Applicant’s struggles over some years.
The Applicant advised that she had been diagnosed with Post Traumatic Stress Disorder, severe dyslexia, and ADHD. She did take (or at least had taken) medication to help with her depression. She argued however that by 2022 her mental health issues were well managed.
The Applicant stated she had contacted Child Safety not infrequently because she needed help with her son who had autism and behaved violently towards her. She informed the Tribunal that she had never denied the struggles she had had with her son, and that she had found it difficult to manage the behaviours demonstrated by both of her children.
She wrote:
She has been through emotional trauma and ha[s] spent many years on [her] recovery path
Having to live with PTSD not limiting the other neurological disorders that the Applicant lives with
Her mental health is much improved and that she is in a much better place now
Her family and friends have witnessed improvements in her mental health and in the acquisition of great healing and improvements
The mental health of the daughter has also greatly improved, and family life has stabilised significantly.
She claimed that not only has she made great progress with her mental health, she now has insight into her abilities and knows when to employ healthy coping mechanisms to mitigate risk to herself and others.
The Applicant stated she employs a range of coping strategies, listing health, diet, and exercise, understanding her capabilities and limitations, ensuring a good sleep pattern, avoiding toxic situations, setting and maintaining healthy boundaries, and maintaining physical and mental health under the guidance of her general practitioner.
The medical reports
The Applicant provided several health professional reports.
Dr Ian Matthews, a General Practitioner since 2014 who has known the Applicant for about 30 years, provided a report dated 29 June 2022. He wrote:
On Applicant’s return from North Queensland in 2014 she had been diagnosed with PTSD, panic disorder and agoraphobia. She had been seeing a psychologist and a GP regularly and had been started on medications.
She had since been seeing a psychiatrist and two psychologists, quite regularly in 2014 and 2015 and less so as her moods improved. She has not seen these health professionals since 2016.
Although her mood stabilised around 2016, the panic attacks occurred infrequently until 2019, usually in response to stress or conflict at work or home. In the last 12 months, she has gradually been weaning off medication without recurrence of symptoms.
In conclusion, Dr Matthews noted:
the concern about her behaviour in 2012 and note that this happened not long after her partner’s death and the complex family issues that followed. It is my belief that she has worked through those problems over the last 10 years and is currently in a good mental state.
Dr Anjalika Monga, General Practitioner since 1 July 2022, wrote in a brief statement dated 29 June 2022:
Though she is on medication for mental health but (sic) in my view if she is allowed to work in community in a field of her choice she can easily be taken off it.
Steven Jarvis, Mental Health Social Worker, stated in a document dated 4 November 2022 that he had been providing psychological counselling to the Applicant since 2 August 2022. He had met with the Applicant for six one-hour sessions and stated that he concurred with Dr Matthews’ view that the acute distress that the Applicant experienced in 2012 was temporary and directly related to her partner’s tragic and untimely death.
The Tribunal considers that the information provided by the health professionals is limited to the Applicant’s mental health issues, and all of them consider that these issues are now improved and stable.
The Tribunal notes however that it is clear that all the health professionals, aware of the tragedy which occurred in 2011, seemingly had little if any knowledge of the other significant events and circumstances challenging the Applicant’s life and wellbeing between 2008-2022.
The Tribunal concurs with the views of the Respondent that mental illness, of itself, is not a barrier to holding a blue card.
Although considerable concerns had been recorded 2008-2018 as to the Applicant’s mental health issues, the Tribunal accepts that the evidence supporting the assertion that the Applicant’s mental health health was stable and well-managed by 2022-2023. It was also clear that the Applicant had made considerable efforts to improve her life and circumstances over the past several years.
The Tribunal considers that by mid-2023, the Applicant’s mental health issues were no longer of concern.
The Views of the Witnesses
The Applicant had provided numerous witness statements and character references from family and friends, several of whom were cross-examined in the hearing.
In October 2022, most of the witnesses had completed a statement designed and distributed by the Applicant.
Relevantly, the statement read in part:
I understand that the reasons that (the Applicant) has a negative mark and denial of negative mark removal concerning:
1. November 2011 (the Applicant) was charged with:
1. Producing dangerous drugs (Marijuana)
2. Possessing dangerous drugs (Marijuana)
3. Possess utensils that had been used for marijuana consumption.
2. March 2018 – June 2018 Matters concerning the Department of Children, Youth Justice and Multicultural Affairs regarding emotional harm where the children did not require protection.
3. Mental health issues (the Applicant) had endured from prolonged stressors related to her partner’s suicide in April 2011.
All of the witnesses had a very positive view of the Applicant’s current mental health stability and of her achievements, strengths and abilities. They were unanimously in support of her negative notice being removed and of her obtaining a blue card. The witnesses were seemingly an important part of the Applicant’s current supportive network.
The Tribunal notes that most of the witnesses were aware of the challenges which confronted the Applicant by way of her son’s behaviours.
Nevertheless, the Tribunal notes that:
1.The witness statement was limited to only part of the Applicant’s circumstances and the events from 2008-2022;
2.The statement made no reference to the events of 3-4 July 2022
3.On cross-examination in the hearing, most of the witnesses informed they were aware of the traffic offence; some were not.
4.The witnesses who were aware seemed to be under the belief that the cannabis involved in the traffic offence was lawfully prescribed medicinal cannabis rather than an illegal version.
Reference will be made to the views of some of the witnesses in later sections of these reasons.
The Tribunal remained concerned with regard to two issues: the Applicant’s use of cannabis and her veracity.
The Applicant’s Use of Cannabis
Use of recreational cannabis
Schedule 2 of the Drugs Misuse Regulation1987 (Qld) classifies Cannabis as a dangerous drug. The use, possession, production, supply and trafficking of cannabis for recreational purposes remains illegal in Queensland. The possible side effects of cannabis are well documented.
The Applicant was convicted of such drug offences on 3 November 2011 and on 18 August 2022.
Use of medicinal cannabis
In 2016, the Queensland Parliament passed the Public Health (Medicinal Cannabis) Act, which sets out a legislative scheme for the approval of applications for treatment of a patient with medicinal cannabis products and for the management of this treatment. A Therapeutic Goods Administration approval by an appropriate health professional is required in order for the medicine to be prescribed.
In her submission dated 25 May 2023 the Applicant wrote:
The use of medicinal cannabis is rather new in (her) life and (she) is now exploring the possible benefits medical cannabis in relation to her PTSD and the pain it has on the physical body.
She was using medicinal cannabis as prescribed by a doctor.
Copies of two pharmacy receipts for the purchase of medicinal cannabis were provided to the Tribunal by the Applicant. Described as the only prescriptions she had ever had, the first was dated 11 July 2022, the second 7 November 2022.
Given the dates of these receipts, there was no doubt that the cannabis used by the Applicant on 3 July 2022 was illegal.
The Applicant’s use of cannabis 2011-2022
The Applicant varied in her accounts of the drugs found in her home on 9 September 2011. Firstly, she informed the QPS the seedlings near the front door and in the back garden were cannabis seedlings and that there was a bong and cannabis in her laundry cupboard for her own use. She pleaded guilty to drug offenses in the Townsville Magistrates Court on 3 November 2011.
The Applicant had submitted that she did not knowingly allow anyone to produce a dangerous drug on her premises or willingly put her children at risk. The level of exposure to the Applicant’s two young children to any drug use, paraphernalia and seedlings up until 9 September 2011 is unclear. They would have both been, however, subteens that year.
In regard to her second drug offence on 4 July 2022, the Applicant informed in the hearing that she had visited a friend on the evening of 3 July 2022, and had taken ‘a toke of a joint’.
The Applicant admitted that she violated the law by driving within twenty-four hours of ingesting cannabis. She argued that she was motivated purely by the fact that her daughter was in such distress (at the prospect of being late for work) and only wished to help her.
Under cross-examination, the Applicant’s advice as to the frequency of her cannabis use was vague. She was inconsistent, at times confused and struggled to accurately recall dates and time.
She informed that her first use of cannabis was in her late 20s, possibly aged 29. From 2013 to July 2022, she at first stated that it might have been once a month or less. A short time later however she informed that prior to July 2022, it had been once a year.
The Tribunal notes the views of the Applicant’s witnesses in regard to the Applicant’s cannabis use on 3 July 2022. Some seemingly thought that only a traffic offence was involved, while others were aware of the drug use. One friend had supplied cannabis to the Applicant on 3 July 2022; whether this friend was a witness is unknown.
However, many of the witnesses believed the drug involved was the legally prescribed medicinal cannabis. The Applicant recorded:
…Witnesses were only told by (her) that she was charged with a THC presence whilst driving a motor vehicle;
(She) did not specific (sic) if it was medicinal cannabis or otherwise; and
… The witnesses have not known (her) to be a cannabis smoker until she started using medicinal cannabis and was informed of such by (her).
The Tribunal remains concerned that many of the witnesses did not have comprehensive knowledge of the applicant’s criminal history and of her illegal cannabis use on 3 July 2022, and that what they did believe had largely originated from the Applicant’s own self-reporting.
With regards to the 4 July 2022 incident, the Applicant informed that she:
… holds a high level of respect for the law and only broke the law to help her daughter under extenuating circumstances;
… feels great regret and remorse for having decide (sic) to drive that day, even it is (sic) over a twelve-hour period since ingesting cannabis; and
… has displayed that there is no drug of (sic) substance abuse.
The Tribunal considered that it would have been an extraordinary coincidence if, on the only time in some years that the Applicant had used cannabis, she had been intercepted by the QPS.
The Tribunal also considered that it was not impossible that the acquisition of scripts for medicinal cannabis within a few days of the drug offence were an attempt to mislead various entities into believing the drug identified on 4 July 2022 was legal.
In the hearing, the Applicant’s initial comments on the events on 4 July 2022 seemed to be anger towards the QPS officer who interceded her wrongly thinking that her motor vehicle was unregistered.
In terms of her cannabis consumption over recent years, the Tribunal considers that overall the Applicant’s evidence in terms of her cannabis use was lacking in detail, evasive and at times contradictory. Whether this was either confusion or intentional deceit remained unclear.
The Applicant’s veracity
The Tribunal considered that the events in 2011 and those very much more recently in 2022 threw considerable doubts on the Applicant’s integrity and trustworthiness.
With regard to the 2011 offences, the Applicant provided two different stories about her drug use/possession: firstly, to the QPS and the Townsville Magistrates’ Court in criminal proceedings and secondly, to the Respondent and the Tribunal.
One of these stories was untrue.
In the first version, she lied to the Respondent and the Tribunal. In the second, she lied to the QPS and, by entering a plea of guilty, she also lied to the Magistrates’ Court. She seemingly had had no problem with lying.
In her submission dated 25 May 2023, the Applicant wrote that:
she took the rap for the drugs and they didn’t belong to her
It was not mine, but I took the blame. My name was on the lease so my responsibility…
In the hearing in April 2023, and accordingly some of her witnesses, the Applicant advised that she took the blame in order to protect her mother.
She stated in writing:
… (she) had asked her mother to leave upon learning of the cannabis growing on the rental property…and had not had the time to dispose of the cannabis plants, cannabis and other paraphernalia …
One witness informed in the hearing that she thought that the 2011 drugs had belonged to the Applicant’s late partner; another the late partner or the mother.
Although the Applicant eventually stated that she regretted pleading guilty because of the ramifications of the first conviction, the enormity of the difference in her two 2011 stories appeared to have escaped her knowledge or understanding. She appeared to continually underestimate the seriousness of her offending and appeared to exhibit either ignorance or at worst wilful disregard for the justice system.
The Applicant also demonstrated some difficulty in maintaining impeccable reliability in terms of her honesty and steadfastness; a degree of flippancy is evident in her relationship with the truth.
This propensity may well have flowed over into the Applicant’s evidence of her use of cannabis in recent years.
Despite her contentions and based on her vague and conflicting accounts of her cannabis use from 2011 to 3 July 2022, the Tribunal cannot accept that the Applicant had, on the balance of probabilities, used but one single toke of cannabis between 2011-2022. Her integrity in this regard was therefore significantly compromised.
Conclusion
The Tribunal would had expected that the Applicant, despite her considerable challenges and difficulties, would by 2022 have developed a mature understanding of the effects and consequences of her actions. This was not apparent.
The Applicant’s cannabis use, offending and her difficulty in maintaining honesty at all times raised concerns about her ability to judge appropriate behaviour and present as a positive role model. The Applicant seemed not to possess much insight into the nature and effect of her offending behaviour and demonstrated an inability to discern that certain conduct (namely cannabis use and lying) is not appropriate in society, thus adversely affecting her suitability as a role model for children.
The principle under which the WWC Act must be administered is that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. A child-related employment decision must be reviewed under the principle that the welfare and best interests of the child are paramount. Children are inherently vulnerable. Their welfare depends upon adult carers being able to recognise risk and act in an appropriate and protective manner.
The responsibilities of a holder of a positive notice and a blue card are significant. It is expected that at all times blue card holders will demonstrate integrity and reliability and will model appropriate, safe and legal behaviour and respect for the legal system and legitimate authorities.
Blue cards are given without conditions so if the applicant were to be issued with a blue card, she could work—under supervision or not—in any area of child-related employment. Any consequences, in terms of prejudice or hardship to the Applicant, are not relevant in child-related employment decisions. The potential consequences for children, however, of issuing a blue card, are significant.
The Tribunal was of the view that it would not be in the best interests of children for the Applicant to be issued a blue card.
The Tribunal was therefore satisfied, on the balance of probabilities, that the applicant’s case is ‘exceptional’ within the meaning of s 221 of the WWC Act. Accordingly, the decision of the Respondent is confirmed.
Human Rights Act 2019 (Qld)
The Tribunal has considered the relevant human rights as set out in the Human Rights Act 2019 (Qld). As required by s 48 of that Act, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.
The Applicant’s rights and the rights of children to recognition as people before the law, entitled to equal protection without discrimination, freedom of expression, and privacy and reputation are all engaged. Of particular concern are the rights of children, the protection that is needed and which is in the child’s best interests because they are a child.
Taking into account the findings above concerning the criteria set out in s 221 of the WWC Act, the Tribunal is satisfied that the limits imposed by the issuing of a positive notice would not be reasonable and not justified in accordance with s 13 of the Human Rights Act 2019 (Qld).
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