LXJ v Director-General, Department of Justice and Attorney General
[2023] QCAT 43
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
LXJ v Director-General, Department of Justice and Attorney General [2023] QCAT 43
PARTIES:
LXJ (applicant)
v
Director-General, Department of justice and attorney general (respondent)
APPLICATION NO:
CML260-21
MATTER TYPE:
Childrens matters
DELIVERED ON:
2 February 2023
HEARING DATE:
15 December 2022
HEARD AT:
Brisbane
DECISION OF:
Member PG Stilgoe OAM
ORDERS:
The decision made on 23 July 2021 to issue a negative notice to LXJ is set aside.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant was issued a negative notice – where the applicant required a Blue Card to complete his nursing placement – where the applicant had a criminal history involving drugs – where the respondent did not put forward evidence that the applicant was at risk of harming a child – where the applicant had a prescription for medicinal cannabis – where the Tribunal held that there were no exceptional circumstances
Working with Children (Risk Management and Screening) Act 2000, s 5, s 6(a), s 226(2), s 318, s 319, s 355, s 337, s 338, s 138ZG
APPEARANCES & REPRESENTATION:
Applicant:
LXJ, Self-represented
Respondent:
C Massingham, Department of Justice and Attorney General
REASONS FOR DECISION
LXJ must complete one more placement to obtain his degree in nursing. He needs a Blue Card to do his placement but the department has issued a negative notice.
Mr LXJ has a criminal history, mainly involving drugs, but his offending is such that the department must issue a Blue Card unless there are exceptional circumstances.
The Working with Children (Risk Management and Screening) Act 2000 states that the object of the Act is to promote and protect the rights, interests and wellbeing of children and young people.[1] The welfare and best interests of the child are paramount.[2] There is not one shred of evidence that Mr LXJ has harmed a child, that he has used drugs in the presence of a child, or is in any way at risk of harming a child. In fact, the only evidence of Mr LXJ’s interaction with children is positive.[3]
[1]Section 5.
[2]Section 6(a).
[3]T1-11, 24 to 29; T1-14, 15 to 25.
Although, technically, neither party has the onus of proof, in reality Mr LXJ is entitled to a Blue Card unless the department can satisfy me that exceptional circumstances exist.[4]
[4]S 221(2)(b).
In deciding Mr LXJ’s application, I stand in the shoes of the department. I must have regard to the matters in s 226(2) in deciding whether exceptional circumstances exist. They are:
a)in relation to the commission, or alleged commission, of an offence by the person—
i)whether it is a conviction or a charge; and
ii)whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
iii)when the offence was committed or is alleged to have been committed; and
iv)the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
v)in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
b)any information about the person given to the chief executive under section 318 or 319;
c)any report about the person’s mental health given to the chief executive under section 335;
d)any information about the person given to the chief executive under section 337 or 338;
e)information about the person given to the chief executive under the Disability Services Act 2006, section 138ZG;
f)anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
The offences
Mr LXJ was charged and found guilty of the following:
(a)In 2015, supplying dangerous drugs (4 charges); possessing anything used in the commission of crime defined in Part 2;
(b)In 2018, assaulting or obstructing a police officer; possessing utensils or pipes etc. that had been used; possessing utensils or pipes etc. for use;
(c)In 2019, possessing dangerous drugs; possessing utensils or pipes etc. that had been used;
(d)In 2021, driving while a relevant drug was present.
No conviction was recorded in any of the cases.
Information given under s 318/319
There is no information from the chief executive corrective services.[5] There is information from the director of public prosecutions which I have considered in relation to the offences and “anything else relating to the commission”. I do not propose to repeat that information here.
[5]S 319.
A report about a person’s mental health given under s 335
The department relies on the report of Ian Ritchie from Ritchie & Associates.[6] I note that the report was not given under s 335 but provided by Mr LXJ.
[6]Ex 1.
Mr LXJ candidly admits that he suffers anxiety. He had a troubled childhood, marred by sexual assault and two extremely serious accidents.
Mr Ritchie states that “[Mr LXJ’s] recreational marijuana use continued, despite this continuing to constitute offending behaviour. He lacked insight into the potential negative consequences for himself and for others of his illicit drug use and continued to display pro drug use attitudes.”[7] Mr Ritchie also said “Mr LXJ at present lacked insight into his continuing marijuana use and its impact on society, victims, and children. He appeared to justify his marijuana use by claiming it as now legal – that medicinal marijuana was now available.”[8]
[7]Ex 1, p 12.
[8]Ex 1, p 13.
Mr LXJ has a prescription for medicinal cannabis.[9] He told the Tribunal[10] that he provided a copy of his prescription to Mr Ritchie who ignored it. Therefore, Mr Ritchie’s comments about Mr LXJ’s supposed continued illegal drug use and lack of insight are incorrect. Mr Ritchie’s refusal to consider that evidence properly casts doubt on the usefulness of his report generally.
[9]Ex 6.
[10]T1-27, 25 to 26.
Information obtained under s 337 or 338
There is no information provided under s 337 – from the Mental Health Court – or s 338 – the Mental Health Review Tribunal.
Information given under s 138ZG of the Disability Services Act
There is no information provided under this section.
Anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
The department relies on four factors: Mr LXJ’s lack of respect for authority, his continued drug use, his lack of rehabilitation, and his lack of insight.
Lack of respect for authority
Ms Massingham points to a charge for assault of a police officer in 2018 as evidence that Mr LXJ does not respect authority. She points to the sentencing remarks of Magistrate Spencer:[11]
The police and security officers and people of that nature have extremely difficult jobs. Their job is to – they are required to do certain things. If you are not happy with… what they are doing, you have a complaints procedure that can be lodged later on, but you must comply with their directions.
[11]Respondent’s further documents filed 14 December 2022, BCS-61, [2] – [7].
Mr Ritchie thought that Mr LXJ lacked insight at the time of committing the assault but, with hindsight, saw how he could have dealt with “this” differently at the time.[12]
[12]Ex 1, p 13.
Mr LXJ told the Tribunal that he did not assault the police officer but that he did try to stop the officer taking his sister’s phone. I have read the brief of evidence for this offence:
The police were attending to a noise complaint, they were denied entry by the “occupants”, Mr [LXJ] walked away and “soon thereafter (Mr LXJ) was arrested for Obstruct Police adjacent to the dwelling’s rear door.”
The brief of evidence sheds no light on the actual circumstances of the offence. The Magistrate’s comments are no more or less than one would expect.
There is no excuse for acts of violence against police officers. Mr LXJ has since conceded that his behaviour was inappropriate and there is no other evidence of a lack of respect for authority.
Continued drug use
Dr Amarjit Singh has issued prescriptions for medicinal cannabis. He issued the prescriptions to treat Mr LXJ’s anxiety, sleep disorder, OCD and PTSD. He told the Tribunal that he had seen a marked improvement in Mr LXJ’s mental health.[13]
[13]T1-36, 21 to 27.
Dr Singh issued the prescriptions without knowing of Mr LXJ’s criminal history. When he was asked if that would have made a difference, Dr Singh told the Tribunal he would still have prescribed medical cannabis for Mr LXJ but might have undertaken closer supervision initially. He also told the Tribunal that legal cannabis was a good thing and much misunderstood.[14]
[14]T1-36, 29 to 44; T1-37. 15-17.
Mr LXJ was charged and found guilty of driving whilst a relevant drug was present in 2021. Mr LXJ told the Tribunal that he was given dexamphetamine to keep him awake for the long drive home from a party.[15] Mr LXJ admitted this was not the cleverest thing he had ever done but I am not persuaded that this incident constitutes continued drug use. It was a one off, it was for a purpose, not recreation, and it was a very different drug.
[15]T1-26, 4 to 13.
As I have mentioned, there is no evidence that Mr LXJ has used, or intends to use, drugs in the presence of children, even if that drug is legally prescribed.
Rehabilitation
Ms Massingham suggests that Mr LXJ has not applied himself properly to the task of rehabilitation. She asked him why he did not seek a series of visits to a psychologist to address his mental health issues.
Ms Massingham seems to suggest that there is only one way to demonstrate rehabilitation – through a series of sessions with a psychologist. She gives no weight to the fact that Mr LXJ has completed a nursing degree at his own expense, that he sought a referral to Dr Singh to deal with his anxiety, that Dr Singh prescribed medical cannabis, or that Dr Singh has noted a marked improvement in Mr LXJ’s condition. She gives no weight to Mr LXJ’s determination to give back to society by becoming a competent and caring nurse.
I am satisfied that Mr LXJ has demonstrated appropriate rehabilitation.
Order
The decision made on 23 July 2021 to issue a negative notice to LXJ is set aside.
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