Maj v Director-General Department of Justice and Attorney-General - [2022] QCAT 324

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MAJ v Director-General Department of Justice and Attorney-General [2022] QCAT 324

PARTIES:

MAJ

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML007-21

MATTER TYPE:

Childrens matters

DELIVERED ON:

7 September 2022

HEARING DATE:

11 July 2022

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is not “exceptional” within the meaning of s 225 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is an exceptional case.

2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of any information that could lead to the identification of the applicant and accordingly these reasons have been deidentified.

CATCHWORDS:

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

Drugs Misuse Act 1986 (Qld) s 6

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s66
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 225, s 226, s 228, s 360, Schedule 2, Schedule 7

Human Rights Act 2019 (Qld), s 13, s 26, s 31, s 34, s 58

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Mr Jones

REASONS FOR DECISION

MAJ seeks employment as a personal support worker, and requires a Blue Card in order to gain regular employment in that field.
MAJ is now 42 years of age, and has a criminal history as follows:
(a)09/03/99 – Brisbane Supreme Court - supply dangerous drug within a correctional institution, possessing dangerous drug – no conviction recorded, probation 2 years, community service: 80 hours
(b)16/01/18 – Cleveland Magistrates Court – possessing dangerous drugs, possessing utensils or pipes etc that had been used – no conviction recorded, recognisance $150, good behaviour period 4 months, drug diversion.
(c)16/01/18 – Cleveland Magistrates Court – possessing dangerous drugs x 3 – no evidence to offer.
MAJ’s application for a Blue Card was refused, and a negative notice issued by the respondent on 2 December 2020. She has applied to this Tribunal for a review of that decision.
In considering the application under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC’), the paramount consideration for the Tribunal is the welfare and best interests of children, as every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[1]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6, s 360.

The supply of dangerous drug within a correctional institution is defined as a “serious offence” under the legislation.[2] Accordingly, a negative notice must be issued unless the Tribunal is satisfied that this is an exceptional case in which it would not harm the best interests of children for MAJ to be issued with a positive notice.[3]
[2]Schedule 2 WWC, s 6 Drugs Misuse Act 1986 (Qld).
[3]Ibid s 225.
The Act sets out matters which the Tribunal must take into account in making that determination,[4] but this is not an exhaustive list.
[4]Ibid s 226.
This is a fresh hearing on the merits, not an appeal, and the Tribunal must determine the correct and preferable decision. Neither party bears an onus of proof. The Tribunal must determine, on the balance of probabilities, whether this is an exceptional case in which it would not harm the best interests of children for MAJ to be issued with a positive notice.
An in person hearing was conducted and MAJ attended, and provided evidence in support of her application. I also have the benefit of the written material filed by the parties, and the evidence presented by MAJ’s support network.
MAJ’s evidence is largely unchallenged. She met her former partner when she was 15 years of age and dated him until she was 21. It was a relationship of emotional and mental abuse and coercive control. They sometimes used drugs together.
MAJ says that in relation to the 1999 offence:
(a)She was 18 years of age at the time, and pregnant with her son. Her partner was in jail and persuaded her to take him some marijuana. She agreed because she thought it would be for his benefit, and because she “believed in our family”;
(b)She was caught taking the marijuana into jail;
(c)She had been in a relationship with her son’s father since she was 15 years of age and he was 17. She did not realise at the time that he was a “very manipulative, narcissistic person who also has mental health issues”;
(d)At the time, she was not aware of the manipulation, emotional, physical financial and mental abuse she had been exposed to, and was committed to supporting her partner and making a family with him;
(e)She was “young, dumb, full of hormones and clearly not thinking of my future or my baby’s future”, and “under the spell” of her partner, accepting his promises of a happy family;
(f)She subsequently realised that her partner was not able to support her, and was in fact abusive, and their relationship broke down irretrievably; and
(g)She regrets her actions on the day.
She states further that:
(a)She raised her son as a single mother and has in recent years managed the difficulties of her former partner re-entering her son’s life only to quickly leave;
(b)Over the years, she smoked marijuana “every now and again”. If her son was asleep in the house, she would go outside. She regarded her job over the years was to keep her son safe;
(c)She has suffered from the rare medical condition hidradenitis suppurativa since she was a teenager. It is a chronic and painful skin condition which causes lesions to develop. Despite ongoing consultation with her doctor, she was unable to get any real pain relief from medications or other treatment;
(d)In about 2015, her pain increased and she started smoking marijuana every now and again as a pain management tool. Because she felt responsible for her son, she only smoked marijuana or used prescription drugs when it “flared up”, which was approximately every 4 – 6 weeks. Her doctor was aware of the exorbitant cost of medicinal marijuana, and said something to the effect that she would be “better off going to see your local bikie”; and
(e)As a consequence of her relationship with her former partner, she has few social friends, choosing instead to devote herself to work and her son. She spent time supporting his sport and other activities when he was a child and has managed to save enough money to buy a house which she intends to ultimately leave to her son.
In relation to the 2018 offences, the applicant says that she has been managing her pain from a motor vehicle accident in addition to the symptoms of hidradenitis suppurativa, and had been unable to effectively manage her ongoing pain except through the use of marijuana until she had surgery in 2018. She says she is now pain free and no longer uses marijuana.
I have a letter from MAJ’s general practitioner dated 9 January 2018 stating
“MAJ, age 38 years 1 mth, is a regular patient of this Practice and has long term pain due to suppurative hidradenitis and is awaiting surgery. As a consequence, she has found the only relief she can get from the pain is from use of marijuana.”
MAJ’s mother provided evidence in support of MAJ, telling the Tribunal that:
(a)MAJ was not using drugs while she was pregnant, although she may have previously due to coercion by her then partner;
(b)MAJ’s former partner was controlling and manipulative, and MAJ had tried to help him become a better person but it didn’t happen. She was present during an incident in a car when the former partner threatened to throw MAJ’s son out the window when he was about four months old. Ultimately, he smashed the gear lever so the car was undriveable. He subsequently returned to jail but would contact the family sporadically and say that he was going to take the child, or threaten to hurt MAJ – he would start “ranting and raving” and she would hang up the phone. The phone calls stopped when he was returned to jail. The family lived in constant fear of him;
(c)MAJ’s medical condition caused severe pain - it was difficult to dress herself, drive or work. It was heartbreaking to watch. Because the condition was rare, MAJ was unable to find medical help, and her GP could not prescribe effective pain management medication. MAJ used marijuana to relieve her pain and get some sleep. Marijuana was used “in desperation”;
(d)Following her operation in August 2018, there was an unbelievable change and MAJ became pain free. Her appetite and general wellbeing returned, and she became positive and happy;
(e)MAJ has formed a loving relationship with her client, a vulnerable person with a brain injury who trusts MAJ;
(f)MAJ is a lot more mature than she was when she attempted to smuggle the drugs into jail. She now recognises when people are taking advantage of her and doesn’t give them the opportunity to do so. She doesn’t go out socially much but does cake decorating as her outlet; and
(g)MAJ is close to her sister’s children and the daughter of her friend, and is well supported by her family and friends.
MAJ’s uncle provided evidence in support, stating that:
(a)He trusted MAJ “absolutely” to care for his children when they were young, and now his grandchildren;
(b)He has seen MAJ interact with her own son, and her nephew, who has disabilities. MAJ is very caring and good at distracting her nephew’s attention and managing his disruptive behaviour;
(c)The drug smuggling incident arose when MAJ was very young and was in an abusive relationship where there was a strong degree of coercion; and
(d)The later drug charges arose when MAJ had a lot of issues with pain management and medicinal marijuana was not available at the time.

IS THIS AN EXCEPTIONAL CASE?

In determining whether this is an exceptional case, I have had regard to the factors in the legislation.[5] In particular:
(a)The applicant has been convicted of the charges brought against her in relation to supply of dangerous drugs within a correctional institution (1) and possessing dangerous drugs (2), possessing utensils or pipes etc that had been used (1);[6]
(b)The supply offence is a serious offence. The other offences are not serious or disqualifying offences under the legislation;
(c)The supply offence was committed when the applicant was very young, some 23 years ago. The possession charges are much more recent (2017);
(d)The use of drugs is relevant to employment that involves children as the applicant would, if affected by drugs, not be able to provide adequate level of care to children. Supply of drugs is relevant to employment that involves children as involvement in criminal activity might place the applicant and those in her care at risk of coming into contact with criminals and dangerous and potentially drug affected people. Further, there would be a risk of supply of drugs to children in the applicant’s care; and
(e)In sentencing the applicant for her crimes, the Court imposed a probation order, community service, a good behaviour period and an order to complete drug diversion. No conviction was recorded.
[5]s 226 WWC.
[6]Schedule 7 WWC.
The Tribunal has been provided with information received under the Child Protection Act 1999. This is defined as “disciplinary information”[7] and must be taken into account in my decision.[8] Accordingly, I have considered:
(a)The information contains allegations that the applicant was abusing and neglecting her child. The Department conducted a full investigation and found the allegations unsubstantiated;
(b)This alleged conduct was said to have occurred some 22 years ago; and
(c)Allegations of child abuse are highly relevant to my consideration in this matter. I note, however, that the Department found the child to be happy and well cared for.
[7]Schedule 7 WWC.
[8]s 228 WWC.
I accept the respondent’s submissions that continued drug relating offending, or illicit drug use by the applicant, would be likely to detract from her ability to provide a protective environment for children in her care.
I find, however, on the evidence available to me, that there is no ongoing drug use by the applicant, and that there has been no drug use by the applicant since she received effective treatment to deal with her medical condition and intense pain. I consider the risk of the applicant supplying drugs to anyone almost non-existent. I accept the applicant’s explanation in relation to the supply conviction: that she was subject to coercive control by her then partner and consequently engaged in behaviour that was stupid and dangerous. She has not repeated her mistake in the last 23 years. She is committed to not engaging in any similar behaviour.
I accept that the applicant’s use of marijuana was greater than on the occasions reflected in her criminal history. I do not accept the respondent’s submissions that there is concern that the applicant has “an entrenched pattern of illicit drug use”. The evidence is that the applicant used marijuana to deal with the pain of her medical condition when unable to otherwise find relief. Her medical condition is now resolved, and she no longer uses marijuana.
I accept the respondent’s submission that the applicant demonstrated limited insight into the link between her use of marijuana and her eligibility to hold a Blue Card. While that is a relevant consideration, it is not determinative.
I must make a decision on the evidence and circumstances as they currently are and can be reasonably foreseen. I cannot make my decision, as urged by the respondent, on the basis of what might happen if the applicant’s circumstance change in the future.
The applicant attempted to smuggle drugs into jail at the behest of her then boyfriend when she was 18 years old. Her former boyfriend was controlling and manipulative and threatening. She was very young, and her attempt was unsophisticated and clumsy. There is no suggestion she has engaged in any similar behaviour in the last 23 years. The applicant used marijuana from time to time over many years to deal with the pain of her medical condition after traditional treatments failed to provide relief. Her GP was aware of her use. Her medical condition has now resolved and there is no evidence that she has used marijuana in the last approximately four years since her surgery. She has no intention to use it again. Apart from concerns about the applicant’s drug use, there is no evidence that granting her a Blue Card would be contrary to the best interests of children.
I am satisfied that these circumstances create an exceptional case in which it would not harm the best interests of children to issue a working with children clearance.
HUMAN RIGHTS ACT 2019
In exercising its jurisdiction in this matter, the Tribunal is a “public entity” under the Human Rights Act 2019 (Qld) (‘HRA’), and so the Act applies. Accordingly, it is unlawful to act or make a decision in a way that is not compatible with human rights or in making a decision, fail to give proper consideration to a human right relevant to the decision.[9]
[9]s 58 Human Rights Act 2019 Qld.
A number of human rights are relevant to this decision, including the rights of MAJ to a fair hearing, the right not to be punished more than once for an offence, and the rights 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.[10]
[10]s 26(2), s 31, s 34 HRA.
A decision will be compatible with human rights if it does not limit a human right or if it limits a human right in a way which is justified by the Act.[11] I am satisfied that this decision does not limit the applicant’s human rights. I have found that the rights of children to protection will not be limited by this decision. Accordingly, I find that this decision is compatible with human rights.
[11]s 8 HRA.
NON-PUBLICATION ORDER
The applicant provided evidence that she remains in fear of her former partner. She seeks a non-publication order so that neither she nor her now adult child are identified, and so that no information is available that might lead to their identification. The Queensland Civil and Administrative Tribunal Act 2009 (Qld) allows for the making of a non-publication order in particular circumstances.[12] In this case, I am satisfied that the release of any personal information about the applicant would endanger her physical or mental health and is otherwise not in the interests of justice. Accordingly, I will issue a non-publication order.
[12]s 66 Queensland Civil and Administrative Tribunal Act 2009 (Qld).