Mitchell v Director-General, Department of Justice and Attorney-General - [2024] QCAT 435

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mitchell v Director-General, Department of Justice and Attorney-General [2024] QCAT 435

PARTIES:

CHRISTOPHER JOHN MITCHELL

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML230-21

MATTER TYPE:

Childrens matters

DELIVERED ON:

3 October 2024

HEARING DATE:

2 September 2022

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General that Mr Mitchell’s case is “exceptional” within the meaning of s 221 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 no exceptional case.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY LEGISLATION – OTHER MATTERS – blue card – where applicant seeks review of a decision to issue a negative notice – where applicant has a conviction for possession of cannabis, cocaine and utensils – whether it is an exceptional case in which it would not be in the best interest of children to issue a positive notice to the applicant.

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

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 18, s 20, s 21, s 24, s 66

Working with Children (Risk Management and Screening) Act2000 (Qld), s 5, s 6, s 221, s 226, s 360

Briginshaw v Briginshaw (1938) 60 CLR 336

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 for Children and Young People and Child Guardian v Eales [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492
Commissioner for Children and Young People v Storrs [2011] QCATA 28
GW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
McKee v McKee [1951] AC 352
RPG v Chief Executive Officer, Public safety Business Agency [2016] QCAT 331
Re TAA [2008] QCST 11
Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152

TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Johnson, in-house lawyer for the Department

REASONS FOR DECISION

Introduction

Mr Mitchell had been issued with blue cards on 30 March 2007 and 15 June 2018. Blue card services were later notified by the Queensland Police Service that Mr Mitchell’s police information had changed and his eligibility for a blue card was reassessed. He received a negative notice and statement of reasons dated 15 June 2021 which meant that he was not eligible to work with children in Queensland. He has made application to the Tribunal to review that decision.
The Legislation
The purpose of the Working with Children (Risk Management and Screening) Act2000 (‘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 they or their 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, which is both charges and convictions. 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.
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. 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] The decision under review is then whether Mr Mitchell’s case is an exceptional case.
[1]WWC Act, s 221(2).
The Department noted in its submissions that the term “exceptional case” is not defined in the WWC Act, and that 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 the interests of the persons whom it is here, quite obviously, designed to protect: children”.[2] 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]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31] (‘FGC’).
[3][2004] QCA 492 (‘Maher’).
[4]FGC at [33].
Where a person has been charged with or convicted of an offence, the Tribunal must have regard to the considerations prescribed in s 226 of the WWC Act in determining whether an exceptional case exists. Section 226 is not an exhaustive list of considerations and does “not expressly or impliedly confine the Tribunal to considering only the matters specified therein”, rather they are “merely certain particular matters which the [Tribunal] is obliged to consider in deciding the application.”[5]
[5]Maher at [42] per Phillipides J.
The Tribunal when reviewing a blue card decision stands in the shoes of the decision maker and must make the correct and preferable decision[6] based on a fresh hearing on the merits.[7] 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.[8] 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.[9] 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.[10] There is no onus of proof which must be discharged by either party in regard to the application[11] and the Tribunal must make its decision based on the balance of probabilities in accordance with the decision in Briginshaw v Briginshaw.[12]
[6]Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20(1) (‘QCAT Act’).
[7]Ibid, s 20(2).
[8]Ibid, s 19(a).
[9]Ibid, s 21.
[10]Ibid, s 24.
[11]Commissioner for Young People and Children v Storrs [2011] QCATA 28.
[12]Maher, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (‘Briginshaw’).
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]
[13]WWC Act, s 6.
[14]Ibid, s 360.
The Department submits, as relevant, the Oxford dictionary definition of paramount to mean “more than anything else; having supreme power”. It submits that in Maher,[15] McPherson JA acknowledged the importance of the paramount principle stating that:
“Expressions in that form have long been a feature of the law governing the affairs of children.” Referring to that principle in McKee v McKee [1951] AC 352, 365, Viscount Simonds said that it was the paramount consideration “to which all others yield”.
[15]Maher, at [3].
The Department further submitted that the paramount principle ought to inform the standard of proof required in decisions under the WWC Act. It submitted that in Maher, it was accepted that the test in Briginshaw applied to child-related employment decisions. 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 the consequences involved, that there was an exceptional case.[16] The Department submitted that given the paramount principle and the nature of the decisions under the WWC Act, the “gravity of consequences involved” should be taken to mean the gravity of consequences for children if a blue card were to issue. Any consequences, in terms of prejudice or hardship to Mr Mitchell, are not relevant in child-related employment decisions.[17] 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 Chief Executive Officer, Public Safety Business Agency v Masri.[18] There the Appeal Tribunal references the paramount principle in holding that the Briginshaw test ought to be employed “bearing in mind the nature of the reviewable decision”.
[16]Maher, at [30].
[17]Chief Executive Officer Department of Child Protection v Scott[No 2] [2008] WASCA 171, Buss J at [109].
[18][2016] QCATA 86.
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 Mr Mitchell but a consideration as to whether the requirements of s 221 of the WWC Act 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.
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 applicant’s case is an exceptional case. The Department submitted that this interpretation is not correct. In Commissioner for Children and Young People and Child Guardian v Eales,[19] the appeals Tribunal considered the decision in Maher and determined that:
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors to find whether an exceptional case existed…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 such that it would not harm the best interests of children for a blue card to be issued to a person…No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording “unacceptable level of risk” was made by the Court of Appeal in the Maher Case.[20]
[19][2013] QCATA 303.
[20]Ibid, at [6]-[8].
The Department further submitted that adopting a “balancing” approach risks the Tribunal being led into error. 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, Mr Mitchell’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. I am of the view that, 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. I therefore accept the Department’s submissions in regard to risk and protective factors.

The Human Rights Act

In exercising its review jurisdiction, the Tribunal is acting as a public entity for the purposes of the Human Rights Act2019 (Qld) (‘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 it 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 Department submitted that the relevant human rights[21] here include Mr Mitchell’s right to a fair hearing, privacy and reputation. Mr Mitchell submitted that his right to work should be considered by the Tribunal in accordance with the decision in Storch v Director-General, Department of Justice and Attorney-General.[22] I accept that it is appropriate to consider this right having regard of course to the requirement of the paramount principle. 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.

Application of the law to Mr Mitchell’s case

[21]HR Act, ss 15-37.

[22][2020] QCAT 152 (‘Storch’).

The Paramount Principle

Mr Mitchell states that he requires a blue card to work in the aged care and disability support sector. 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 Mr Mitchell 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 Mr Mitchell as a result of not obtaining a blue card is of no relevance. Similarly, any benefit to children from having access to Mr Mitchell’s skills 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 Mr Mitchell of him not obtaining a blue card nor the potential benefits to children of him obtaining one if it is not in the best interests of children in my considerations under the WWC Act.
Consideration of s 226 of the WWC Act
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 Mr Mitchell 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)Mr Mitchell has several criminal offences. The first was being intoxicated in a public place on 2 February 2015. The second involved multiple charges occurring on the same day, 25 September 2020, being possessing dangerous drugs (two charges), possessing utensils or pipes etc that had been used and possessing utensils or pipes etc for use.
Whether the offence is a serious offence and, if it is, whether is a disqualifying offences
(b)None of the offences of which Mr Mitchell has been convicted or charged are serious or disqualifying offences.
When the offence was committed or alleged to have been committed
(c)The dates of charges are set out above. At the time of the intoxication offence Mr Mitchell was 26 years old and at the time of the drug offences he was 31 years old. The drug offences are relevant recent offences. The Department submitted that the recency of the drugs offences supports a finding that Mr Mitchell’s case is an exceptional case.
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 drug offences committed by Mr Mitchell. Police executed a search warrant on 28 August 2020 at Mr Mitchell’s residence. They located 14.95 grams and 8.79 grams of cannabis leaf/head, 5.86 grams of cannabis ground dust, 1.5 grams of cocaine, an electric grinder, a waterpipe, two pairs of scissors and two brass smoking pipes. Mr Mitchell made admissions to the police about the drugs and utensils found.
(e)At the hearing the Department questioned Mr Mitchell about his driving history and he admitted that he had a drink driving conviction form 2014 which resulted in a driving disqualification for 9 months and a 12 months interlock period once he regained his licence.
Relevance of offending to working with children
(f)The Department acknowledged Mr Mitchell’s offences were not committed against children, nor is there evidence to suggest children were present. The Department submitted that however, to dismiss the relevance of Mr Mitchell’s offending on the basis that it is not child related and that children were not present at the time ignores the protective purpose of the legislation and diminishes Parliament’s intention that all offences may be relevant in making a decision under the WWC Act. The Department submitted that Mr Mitchell’s recent convictions for possessing dangerous drugs, namely cannabis and cocaine, reflect adversely on his ability to work with children due to the effects associated with the use of such drugs. Cannabis use is associated with maladaptive behavioural and psychological changes, such as euphoria, anxiety, panic and impaired motor coordination, attention and memory. The use of cocaine which is classified as a schedule 1 dangerous drug in the Drugs Misuse Regulation 1987 (Qld), reflecting Parliament’s consideration of its dangerous and harmful nature, is associated with anxiety, agitation and paranoia, hallucinations, panic, and unpredictable and violent or aggressive behaviour. These side effects it was submitted by the Department have the capacity to place children under the care of a cannabis and/or cocaine user at risk of neglect of their immediate physical and emotional needs. The Department submitted children have the right to be protected from exposure to drug involvement 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. Continued illicit drug related offending by Mr Mitchell would be likely to detract from his ability to provide a protective environment for children in his care.
(g)The Department also submitted that Mr Mitchell’s offending also raises concerns about his ability to judge appropriate behaviour and present as a positive role model. Children rely upon adults to be positive role models, and it has been stated by the Tribunal that:
It can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.[23]
[23]CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 [67].

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

(h)Mr Mitchell was fined 150 dollars with no conviction recorded in regard to the intoxication offence. Mr Mitchell was given a recognisance of $500 and to be on good behaviour for six months and ordered to participate in a drug diversion course with no conviction recorded in regard to the drug offences. The Magistrate stated that he had taken into consideration that he had pleaded guilty at the first opportunity and that this does show a level of remorse and entitles him to a lesser penalty. The Magistrate also noted that he took into account the nature and circumstances of the offence and noted that Mr Mitchell had heard what he had to say to his co-accused and that people can come to court and convince a magistrate based on the intelligence they have, so that Mr Mitchell was clearly on the radar. It was noted that the co-accused who had fewer drugs received a drug diversion and recognisance order and that it was only fair Mr Mitchell received the same type of penalty. A character reference Mr Mitchell had was also taken into account. Mr Mitchell was given the benefit of having no conviction recorded and that he be released upon entering a $500 recognisance on condition he be of good behaviour and appear for conviction and sentencing if called on within the next six months. There was also a drug and assessment and education session ordered.
(i)In response to the sentencing remarks Mr Mitchell submitted that although he was caught with the illegal substances he was not the person wanted and his name was not on the warrant on the day of the incident. He submitted that the Magistrate had said “Make no mistake Mr Mitchell you are on the radar” and he has not had any contact with the Police or authorities since the incident in 2020.

Any information about Mr Mitchell provided under sections 318, 319, 335, 337 or 338 of the WWC Act
(j)No information was requested or received pursuant to these sections of the WWC Act.

Anything else relating to the commission, or alleged commission of the offences that is reasonably considered to be relevant
(k)The Department submitted Mr Mitchell’s traffic history which is discussed above.

Risk and Protective Factors

Mr Mitchell stated that his childhood was very happy and that he had had involvement on the school council at primary school and competed for many Australian rules football teams. He noted that his father had passed away in 2006 in his last year of high school. He has one sister who is four years younger than him. His mother re-partnered in 2010 with Andrew Innes, a builder. That relationship lasted until 2017. While in high school he worked part time and following school he had various jobs. He moved to Victoria in March 2017 to pursue a football career but returned in April 2017 and worked for his mother’s partner as a construction labourer until December 2017. He said that up until 2017 he had never had a career, he just went from job to job not knowing what he wanted to do. At the end of 2017 he completed his Certificate 3 in aged care and disability support. He commenced with a service provider in March 2018 and described the tasks involved in his work as a support worker. That is helping intellectually disabled clients with day to day activities. He submitted that working in the disability and aged care sector brings him joy. He has advanced from part time to full time work over this period and has received positive feedback from the families of his clients and his employer. He has stayed with one client in particular over this one period of time. His employer is aware of the charge on 28 August 2020 and is still happy to employ him. There are times at work when his hours will be, for example 2:00pm – 10:00pm (which is all he gets paid for) but he is required to stay until 6:00am (which he does not get paid for). He highlights this because this is how much he loves his job. He knows it is not for everyone and not everyone could deal with working extra hours and not being paid but it is worth the joy it brings him. He finds his job very impactful and it is a career he wants to keep doing for a long time. Mr Mitchell confirmed at the hearing that he does not now work with children under the age of 18 years old so he can continue his employment while not having a blue card.
Mr Mitchell stated that he first used cannabis in 2010 and smoked socially; he said he was never a heavy user. He said he stopped smoking in 2011 when he returned to playing football competitively. He then started smoking cannabis again in 2020 because of the breakdown of a serious relationship of six months. He noted that 2020 was challenging for everybody in the world with the pandemic, and the failure of the relationship left him feeling lost and without much hope. The Department submitted that Mr Mitchell’s decision to self-medicate with illicit drugs reflects adversely on his ability to make appropriate decisions in the best interests of himself and others. Mr Mitchell confirmed at the hearing that he did not buy cannabis between 2012 and 2020 though he may have smoked at parties. He also confirmed that he smoked cannabis with Mr Innes while he lived with him. The Department noted at the hearing that there was only one record of drug-related offences. He accepted that the extent of his drug use was not on his criminal history. He was asked whether he maintained that his use of drugs was out of character. He said there had been seven years between his uses of illegal substances. He was asked how he started using cannabis in 2020. He said he asked his roommate and he would get some off of him. He was asked if he still needed it after the roommate moved out. He confirmed that he did. He was asked if he would live again with roommates who used dangerous drugs. He said our rents had gone up and he was not going to be checking people’s bags. He said he would try to move out if someone moved in who used substances and they were using. He was asked if he tried to move out after the raid occurred and he said he was staying around because he was looking after his sister and he was being a big brother, and that parts of it may have been domestic violence. The Department submitted that it is a concern that Mr Mitchell did not demonstrate a firm desire to avoid living in an environment where drug-related activities may occur.
Mr Mitchell stated he first used cocaine in 2013 when he was in Canada. That he has tried it on a couple of occasions since socially. He says he has never bought cocaine and has not used it since his drug offence. In regard to the cocaine at the residence which he was charged with Mr Mitchell stated at the hearing that he had gone to a party and friends came back and he found it in the kitchen. He said he did not use cocaine at the party as it was an unfamiliar place and he did some when he got back to his place. He said he did not throw it out because he was curious. He said he had also used cocaine in in 2014 after he got back from Canada. The Department submitted that it is a risk factor that Mr Mitchell retained the cocaine, and that this strongly suggests that he would have engaged in further drug use had it not been confiscated by police. While this may or may not be the case the facts are that Mr Mitchell was raided and the drugs were confiscated and he underwent drug diversion and many sessions with a psychologist, and he has changed his life in many ways such as joining a football club and developing coping strategies to avoid the use of drugs.
At the hearing Mr Mitchell was asked about a conviction for being drunk in a public place in 2015. He said he was doing a tradesman’s job and probably fell in with the wrong crowd and had had too much to drink. He said on the day he had probably spent a long time in the sun working and playing sport and he had not had enough food or water. He was asked how he came to the attention of the police and said he was intoxicated in a public place and wandering the street. He said he spent three to four hours in the watch house. He said it occurred late at night or during the early morning. He was asked if there were any children present at the drinking establishment. He said he could not speculate if there were young adults present: it was a long time ago and he was intoxicated. He said it was inexcusable to let it happen. He was asked how frequently he drank alcohol and he said he usually had two beers after a game of football, and five or six beers would sit in his stomach. The Department submitted that it was questionable that Mr Mitchell drank two beers after a game of football in the context of him identifying that physical activity, dehydration and a lack of food had contributed to his excessive consumption of alcohol in the past. I on the other hand took those things as being reasons as to why the alcohol he drank on the night in question had such a pronounced effect on him and there is no indication that he is not properly hydrated when playing sport.
Mr Mitchell was also asked at the hearing if he had any traffic history relating to drink driving. He said he did in 2014 but he could not recall his reading. He was asked if his driver’s licence was ever disqualified and he confirmed it was and it related to the drink driving offence, which resulted in a disqualification for nine months for failing a breath test. He was asked if he had a device in his car which he had to blow into to start the car. He said yes and for 12 months. He was asked if he could recall the time of day. He said it occurred late at night or early in the morning. He said it was a going away party for a friend. The Department noted that Mr Mitchell may potentially have been under the influence of alcohol while driving after football. He said he was aware offending of this nature could affect working with children and it is a privilege and that it was terrible when his driver’s licence was disqualified. Mr Mitchell stated at the hearing that he does not drink and drive at all now and there was not a child in the car in 2014. The Department submitted that it is well documented that alcohol can impair an individual’s driving ability and that driving under the influence of such substances poses a risk to road safety. Further, it submitted that his actions had the potential to expose other road users, including children and young people in any surrounding vehicles, to serious risk of harm. The Department noted that the offending in 2015 occurred after the drink driving conviction and submitted that this demonstrates that the disqualification of his driver’s licence was not sufficient to deter Mr Mitchell from excessively consuming alcohol in 2015. In his submissions Mr Mitchell noted that the Department holds concerns in regard to the 2015 offending. He submitted that seven years is a lifetime ago for him and he is a great deal more mature than he was at the time of the offence. He notes that he received his blue card in 2018 and the Department did not hold the same concerns when issuing the blue card originally. As he has no further charges related to alcohol he believes there is no risk factor.
Mr Mitchell acknowledged that the charges he was charged with on 25 September 2020 were all correct and he takes full responsibility for them and is completely aware that he did the wrong thing. At the hearing Mr Mitchell confirmed that he was present when the police executed the warrant. He said the warrant was addressed to his roommate and stated that the house was occupied by him, his sister and her partner. Mr Mitchell confirmed that his sister’s partner was found to have cannabis. Mr Mitchell confirmed that he purchased the cannabis he had from someone who sells it who he found through a friend. In regard to the drug utensils he said the bong was homemade and the brass object was from a tobacconist though he could not remember purchasing them. He was asked if he ever smoked cannabis with his housemate and he confirmed that he did but it was not something he sought to do. He was asked whether he had been using cannabis during his relationship as indicated by his sister. He said he did not speak about his relationship with his sister and a lot of it occurred at her place, and that it was under lockdown so not used. Mr Mitchell stated he was aware at the time the offending behaviour occurred that he did not have the appropriate tools and coping mechanisms to have to have appropriate reasonable decision-making behaviour when faced with the stressor of a relationship breakdown.
In regard to the drug charges he said he used a lawyer in the case as he did not want it to affect his job and he took the charges very seriously. He stated he had paid the fine immediately, and that the six-month good behaviour bond imposed by the Court in relation to the offences had expired and he had not committed any further offences. Mr Mitchell acknowledges and is aware that using drugs is illegal and not acceptable. He said at the time he was lost and stupidly tried to find solace in the wrong way, and that he is committed to not using or associating himself with drugs in the future because he is now capable of implementing the strategies he has learnt from his psychologist. He also has found the scare of his job being on the line is simply not worth the risk. He is 32 years old and has finally found a job and career he loves and wants to make his own until he cannot work anymore. He says he is fully committed to his clients who he enjoys helping and enjoys being someone they can trust.
Mr Mitchell states that he has made significant changes in his life since his drug offences and these are protective factors. Mr Mitchell states that the court mandated drug diversion in October 2020 was extremely helpful and ‘really opened his eyes’. It helped him realise the importance of life, to be grateful for what he had and what he could lose if he were ever to exhibit the behaviour again – which for him, importantly, was his career. During the drug diversion session he realised he wanted to continue his journey of self-improvement and sought further help from the person running the session. He received the contact details for Ms Boast, who is the psychologist he has been seeing since. While it took him a while to come around to seeing her he notes it was before being contacted about the potential negative notice on his blue card. He wants to assure the Tribunal that he was being proactive in taking active steps to ensure that his actions would never happen again and that he was taking steps to determine what coping mechanisms and techniques he could use to ensure that he would never again be in the same position. He says the program helped him to see perspective and he sought out help to overcome his triggers by contacting the psychologist.
Mr Mitchell stated that he has been attending therapy since February 2021 and so far he has attended a total of 16 sessions. Mr Mitchell stated at the hearing that at the time of the offence speed bumps did not look like speed bumps, and he did not have coping mechanisms to deal with the effects of his father passing. He died on a Wednesday and Mr Mitchell went back to school on Friday the same week. He said he coped in the wrong ways. He should have sought help but he was only 16 years old. His psychologist has given him strategies on how to cope if relationships are to break down in the future; with this knowledge in hand he is confident he now has the tools to deal with adversity. These strategies include physical exercise, joining a sporting community to expand his social group/community, his psychological sessions, certain breathing techniques, meditation and yoga. He says these strategies help him improve his mental strength every single day. The Department, noting that exercise was a strategy, asked what he would do if injured and Mr Mitchell stated he had 30 friends to talk to. Noting his referees and that they had been friends for a long time the Department asked why he had not turned to them for support. He said he was embarrassed, and it took him a couple of months to work up the courage to speak to them.
He said in his submissions that with the help of meditation and breathing exercises he is able to calm himself and not resort to drugs to overcome the feelings of loss or hardship. Playing football used to be a big enjoyment in his life and he stopped for a while. However, since his sessions with the psychologist, he has started playing socially again, he has built a community of team members and the club around him feels like a positive and very supportive area of his life. Mr Mitchell said at the hearing that he had built a good support network at the club. That the younger guys look up to him as he played at a higher level, as he looked up to Simon Fenton. He said he takes it seriously and it is very healthy. For now it is more about his mental health, and he and his team members get to see each other each week. He said that by taking football back up he feels he is living a healthier more fulfilled life and there is no way he would go back to the place he was mentally around the time he was charged by police. He said he was playing for a newly formed team close to his home. Since seeing his psychologist he has also started exercising and going to the gym again. He says this is helping with his mental resilience and is keeping him fit and happy. It is a coping mechanism and strategy he uses if he has a bad day and needs it.
Mr Mitchell was asked at the hearing when he stopped using cannabis. He said he stopped about the time the Department gave him their letter, that through the services of Ms Boast a lot of things came up, he said he needed it up until June/July 2021 as a coping mechanism. The Department noted therefore Mr Mitchell used cannabis for a period of at least 12 months. He said he smoked it when he had two days off after having it, used a little on Friday night and worked Monday. At the hearing Mr Mitchell was asked why the drug raid and drug diversion were not enough to stop him using drugs. He was asked if he was unwilling or unable to change the habit. He said it was a bit of both, it was not regularly. The Department submitted that this suggests Mr Mitchell was dependent on cannabis as recently as 2020 and 2021. He said that they were not enough for him to abstain because he didn’t have the coping mechanisms he now has with Ms Boast. The Department submitted this raises concerns about a disregard for the law and unwillingness to change his behaviour at that time. He denied that he was addicted to cannabis. He said when he had previous breakups he had mates and the football club. He was asked if he had used cannabis in response to relationships or other sad occasions previously and he said he used socially only.
He was asked how his consumption of cannabis affected him and he said at time of smoking it allowed him to switch off and sleep and the general side effects were nothing due to activity and fitness schedule. He said he did not sleep the other nights of the week that he did not use cannabis. He said he worked part time during this period of using cannabis and denied that he was ever under the influence of cannabis at work. He also denied that it would have been in his system when he drove to work. He was asked how he dealt with it now and he said he exercised more regularly and had not had any sleeping problems. He was asked if he thought he would have the capacity to care for a child while under influence of cannabis or cocaine. He stated that it is illegal and you would not do something to affect your common sense. He was later asked at the hearing about his understanding of what use of drugs reflects adversely on working with children. He said you do not want someone affected by use of substances to work with them, and common sense means vulnerable children should be protected.

The Department noted the evidence of Mr Mitchell was that he was not partaking in drug use between 2014 and 2020 and the triggers to his drug offending were the relationship breakdown during Covid and that he required cannabis to sleep. The Department submitted Mr Mitchell’s decision to self-medicate with dangerous drugs as a mature adult and after six years of abstinence raises serious concerns about his ability to make appropriate decisions in the best interests of himself and others.
The Department noting Mr Mitchell’s acknowledged history of drug use submitted that the variety of triggers for his drug use, that is socially due to stress and following a relationship break, are a risk factor, and that while this material indicates he has identified the variety of reasons or triggers for his drug use, and this is positive, he does not indicate in his material what he would do if faced with similar triggers in the future.
Mr Mitchell acknowledged the Department’s concerns that he had not had sufficient time to demonstrate that he has been successful in addressing the triggers to his offending behaviour and concern that as a 31 year old adult he should have been aware of the wrongfulness of his offending behaviour. Mr Mitchell stated that he is a mature male and has taken active steps to address this incident and has made extensive progress in what the Department is considering a short period of time, which is described above. He states this progress includes building a support network around him: his psychologist, his football team, colleagues, friends and those he attends gym with. He has been working with his psychologist not only to address what triggered him into his offending behaviour and has developed strategies to cope should these stressors arise again, but also to delve deeper into some issues he has been holding onto for a while, which together is strengthening him and making him more resilient in the face of stressors. He believes he has overcome his stressors with his psychologist and sufficiently dealt with the issues surrounding the relationship breakdown that occurred prior to the offending behaviour and established tools should this occur again. He is taking constant active steps (and will continue to do so) to ensure that he would never be triggered to exhibit offending behaviour. In his submissions Mr Mitchell noted that since February 2021 he has taken active steps to improving himself and not let the offending behaviour happen again. That it has been 24 months since the incident occurred and 18 months since seeing Ms Boast and re-joining a football club. He stated these as well as an increased workload have helped bring structure and maturity to his life, and that as this was his first and only drugs charge, he believes he will never be triggered to do the offending behaviour again.
Mr Mitchell was asked at the hearing whether treatment with Ms Boast was still in progress. He said ‘you are always working on yourself’. He said ‘show me anyone not scared of future loss in terms of death’, and that relationship loss was a special thing. He was asked why he had only seen Ms Boast on a few occasions this year and the reason he had reduced sessions. He said with work and being in a happier spot he does not want to take up someone else’s spot. He said he is committed to not using drugs. He was asked who else he would turn to. He said he is sure Ms Boast would see him, he would talk to Simon Fenton and there are a select number of others. He was asked if he needed to talk to another professional he would. He said he had a good relationship with his GP. He said it was hard for him to get his head around if he wants to get back into dangerous drugs, he said he has made a lot of progress and is happy. Mr Mitchell noted in his submission the Department’s concern about his ability to deal with relationship breakdown. He noted again that at the time of the breakdown there was also a global pandemic which added another layer to his stress and stated that although he had not been through another breakup he is more than equipped to handle a situation like that as he has now had 18 months of psychological help. In regard to the risk of future loss contributing to relapse and going back to offending he said although he has not had great loss he feels with his maturity and knowledge, exercises and conversations that have been acquired he is absolutely in a position to not resort to drugs to mask his problems.
In regard as to whether an exceptional case exists Mr Mitchell submits that it does not exist, and that there is only one record of offending behaviour regarding substance abuse in his 31 years. The behaviour was exceptionally out of character for him and was during a stressful time. He immediately admitted wrongdoing, faced the consequences and sought further help to ensure it never happened again. He does not contemplate that he would ever pose a risk to children and should he ever be in a position to be faced with similar stressors again he has built a support network around him and has developed coping mechanisms to help him. He will not turn to the same behaviour ever again if faced with the same stressors. He does not consider that he poses a risk to children at all. At the hearing Mr Mitchell confirmed that he did not want to turn to drug use as a coping mechanism. He confirmed that the specific strategies he used to abstain from drug use during stressful times were his commitment to the football club and friends, and that getting back on the football team requires him to be at his best so not to use drugs. He said talking to Ms Boast he realised he had used meditation in 2009, 2010 and 2011 and he could use breathing exercises. He said taking a breath and listening to the birds is relaxing.
Mr Mitchell supplied supporting statements from several people. Mr Seturo Nanal had known Mr Mitchell for three years as a colleague disability support worker. He said Mr Mitchell had shown promising and good character working with a high-needs client, and that he has a good attitude towards clients and a good work ethic. Mr Junior Key also knew Mr Mitchell as a colleague disability support worker as his senior team leader, and he works with Mr Mitchell at the house of a complex client. He stated that in the last three years Mr Mitchell had contributed to supporting the client and giving him a better quality of life. He stated Mr Mitchell is a very reliable and honest person, that he knows and understands the situation Mr Mitchell is going through, and that he is a valued part of the team and gets along with everyone especially the client. The client is an adult with a positive behaviour support plan and not many people can work or get along with the client. Mr Mitchell assists with personal hygiene, shopping, doctor appointments and taking the client out for community activities. Mr Mitchell is the only one that has supported the client to his family home for Christmas. He is a valued member of their team and their client loves to be supported by him. Neither of his work colleagues were available for cross-examination at the hearing.
Andrew Innes, a friend of Mr Mitchell who had known him for 10 years and for seven of those through a relationship with his mother, also provided a letter of support. He said that Mr Mitchell has been and still is a team player, especially through football, who has many friends of particularly good character, and he has a high regard for the feelings and property of others. Most notable of late is his love for the work he does with the disabled. He said that this is not work all of us could do and he believes wholeheartedly that Mr Mitchell is a very real asset to his employer and the industry. He has seen Mr Mitchell with his grandson and they get on very well together. He said that while he has not seen it personally, Mr Mitchell has told him of his help and advice to young AFL players. Knowing his nature Mr Innes knew this would be given in a calm and friendly way as opposed to yelling and abusing. Mr Innes later stated that he was happy to welcome Mr Mitchell into his home and that he had lived with him for a number of years and never had reason to ask or tell him to leave. He said that he knew of his police incident and that he had taken steps to rectify the situation.
Mr Innes gave evidence at the hearing. He said that he had known Mr Mitchell for 14 years. He stated he was no longer in a relationship with Mr Mitchell’s mother and that it ended 2015-16. He described his relationship with Mr Mitchell as being good friends. He said he had not read the reasons document. He said his understanding of why Mr Mitchell was issued with a negative notice was that he was caught with marijuana and a tiny amount of coke. He said he was not aware of any other offences. He said that in the time he has known Mr Mitchell his use of drugs was minimal. He said he has seen him smoking pot from time to time but has never seen him use coke. He said he had smoked cannabis with Mr Mitchell and he used it before bed. He said his smoking of cannabis occurred when he was living at his house for four years, and confirmed that it was around 2012. The Department submitted that this demonstrates Mr Mitchell’s use of cannabis prior to 2020 was not only recreational.
Mr Innes said he had no reservations about Mr Mitchell being with his grandchildren and that Mr Mitchell had looked after them and he had looked after them when he was living with Mr Innes. He was asked if he would allow him to supervise children if he had smoked cannabis. He said usually beforehand with the amount of cannabis he smoked there was no problem with him supervising. He said the grandchildren would not have seen him using a bong or other utensil. He said the grandchildren never stayed over when he was there. Mr Innes confirmed that he had engaged in cannabis use. It was noted that Mr Innes had said he encouraged Mr Mitchell to seek professional support for the incident. He said he did not think the amount Mr Mitchell used would warrant interest. He said he was aware that someone with a blue card could work in any child related employment area. He said that Mr Mitchell should be eligible for a blue card, that he is passionate about his work and he has not seen anyone so passionate. He was asked about the last time he saw Mr Mitchell use cannabis or coke. He said he did not know about coke and the last time he was aware of him using cannabis was when they were living together and he has not seen him use it since he moved out.
The Department noted that that Mr Innes had no problem with the amount of cannabis smoked by Mr Mitchell. The Department submitted that it is a risk factor that Mr Mitchell’s referee was unconcerned by his use of dangerous drugs.
Simon Fenton has known Mr Mitchell for 21 years through the local football club. He was made aware of the charges against him by Mr Mitchell in August 2020. Since that time, he has seen big improvements in Mr Mitchell’s life. He witnessed Mr Mitchell has been ‘really focussed’ and dedicated to his job and he has made a return to community sport and is really driven to succeed. He stated that Mr Mitchell returning to football sees him interact with adolescent children and he is always offering a helping hand and a lot of youth look to him as a mentor in their football development.
Mr Fenton gave evidence at the hearing. He confirmed that he had known Mr Mitchell for 21 years and that they were good friends who knew each other through football. He said that they spend time together socially. He said he has not seen the Department’s reasons. He said Mr Mitchell was issued with the negative notice because he got caught with an illegal substance when the Police went into his home. He said he was not aware of what drug it was and he was not aware Mr Mitchell was using drugs. He said he has never used drugs socially with him. He said he had not seen him use cannabis and he had not seen him with any illicit substance. He was asked to the best of his knowledge when he last used. He said he was only aware of whole thing and had never known him to use drugs, that Mr Mitchell was always involved in sport, and drugs were something the club do not do. He said he was not aware of him being convicted of any other offences. He was asked what Mr Mitchell’s interests were while he was an adolescent. He was a football player assistant coach. He was a highly regarded footballer around the football circles. He was asked if youth looking up to Mr Mitchell would be appropriate if he continued to sue drugs and answered no. He was asked what improvements he saw in Mr Mitchell, and said in work: holding a steady job working with disabled people, ‘he is really good at it’. He was asked how he could tell that, and responded ‘we have crossed paths’. The relationship he has with clients is good. He was asked if they were in the same club. He said he is retired now and does not play anymore, but that they were for a very long time. He was asked why he thought Mr Mitchell is eligible to work with children. He said he could not see why not. It would not harm children or lead to anything disrespectful. Mr Mitchell has been around children his entire adult life and he has never seen him do anything wrong. He confirmed that when he spent time with him socially they consumed alcohol. He described his alcohol use socially as Friday after work and he had not seen Mr Mitchell drink to excess.
Ms Shona Mitchell, sister of Mr Mitchell, also provided a reference for him. She said she knew about his drug charges as they lived together, and since February 2021 he has been seeing a psychiatrist to work through things and in her observation he is a lot happier and completely focussed on his job. He loves his job and she has never seen him more committed to a job or more settled the way he has been in the past 12 months. She believes he has strategies and focus to overcome disappointments and not resort back to using drugs, this situation seems like it has made him more mature and he is adamant he will not fall back into bad habits. Ms Mitchell gave evidence at the hearing. She said that she has not seen the statement of reasons but knows of the charges. That he was issued a negative notice because he was caught with cannabis and cocaine. She said she did not know of other offences. She said she was living with Mr Mitchell at the house at the time of the offence. She had lived there for eight years and Mr Mitchell four years. She was present when the warrant was executed. She said she was not aware he was using drugs. She said he used them as a coping mechanism. Since being caught he has stopped and been much better for it. She said that in terms of progress since 2018 he has been seeing a psychologist who has helped him significantly, played football, maintained friends, and that he loved his job. She was asked if she was aware of how long he continued to use cannabis and when. She said he stopped coke immediately, cannabis mid-2021. He stopped for one year. She said she had not observed him interacting with any children. In regard to use of dangerous drugs in the residence she was asked whether there was a reason she did not object. She stated they had very separate living times. She comes home at 6:00am. She was asked if she was aware of his drug use with friends. She said it was generally by himself at home. She was asked if it was just at home. She was asked if she could provide any further details of his taking substances. She said no, and she could provide very minimal detail. She said she supported him obtaining his blue card and that she was aware that there cannot be any limitations placed on the work he can do. She was asked whether, bearing that in mind, she was concerned about Mr Mitchell’s unsupervised access to children. She said he stopped using drugs and will not fall into those habits again. It had been a long time since the offences and Mr Mitchell had a good two years to change. She was asked prior to finding drugs how had he been using drugs. She said it was the start of 2020. She was asked if he was in a relationship when using dangerous drugs and said she believed so. She was asked if she was aware if her partner used drugs and said she was not aware. Ms Mitchell clarified that when the warrant was executed it was addressed to her partner at the time who no longer lived at the address.
The Department submitted in regard to Ms Mitchell’s evidence that while Mr Mitchell submits the breakdown of a six-month relationship and the Covid pandemic triggered his recent drug use, the evidence of Ms Mitchell indicates that he was using cannabis during his relationship and prior to the pandemic, and therefore, his recent use of cannabis may have occurred over a period of up to two years.
In regard to both Ms Mitchell’s and Mr Innes’s evidence the Department notes that they were both aware of Mr Mitchell’s drug use but neither of them objected to his use of same, nor encouraged him to seek professional support. The Department submitted that this diminishes the extent to which Mr Mitchell can rely on his support network to abstain from his use of dangerous drugs.
The Department noted that notwithstanding Mr Mitchell’s drug-related offending his character referees support his eligibility to hold a blue card. However, the Department submitted the supporting evidence from these referees is insufficient to displace the risks and concerns arising from his history of drug use, for the following reasons:
(a)While Mr Mitchell submits that the breakdown of a six-month relationship and the Covid-19 pandemic triggered his recent drug use, the evidence of Ms Mitchell indicates he was using cannabis during the relationship and prior to the pandemic. Therefore his recent use of cannabis may have occurred over a period of up to two years;
(b)Mr Innes and Ms Mitchell were both aware of Mr Mitchell’s drug use but neither of them objected to his use of same, nor encouraged him to seek professional support. The Department submits this quite significantly diminishes the extent to which Mr Mitchell can rely on his support network to abstain from the use of dangerous drugs;
(c)The evidence of Mr Innes was to the effect that he had no problem with the amount of cannabis smoked by Mr Mitchell. The Department submits that it is a risk factor that Mr Mitchell’s referee was unconcerned by his use of dangerous drugs; and
(d)When Mr Mitchell was asked why he did not seek support from his referees in the past, he stated this was due to embarrassment. The Department submitted this raises concerns that should Mr Mitchell experience similar difficulties with cannabis in the future he will not seek assistance from his support network
Mr Mitchell’s psychologist, Katie Boast, filed a report in the Tribunal. She confirmed that she had been providing individual counselling sessions to Mr Mitchell since February 2021, with 15 one-hour sessions completed as at 23 February 2022. She noted that he completed the court-mandated Drug Arm sessions but then sought further counselling under his own volition. She stated he made her fully aware of the crimes he was charged with at the outset of their sessions, and that he expressed deep regret for his actions and an understanding of the magnitude of his wrongdoing. She stated he appreciates why his offences led to the suspension of his blue card and the need to protect children and vulnerable members of society.
In terms of risk factors Ms Boast said she had discussed what led Mr Mitchell to be in possession of drugs, including that his father had passed away when he was only 17 and he was offered no support or opportunity to explore and process his grief. He went back to school only three days later and coped by suppressing his emotions. They discussed the fact that he never sought help to deal with his grief as he got older as he believed it would be painful to explore, and that in May 2020 he experienced the ending of a relationship which again brought up feelings of loss. She states that he acquired the drugs that he was charged with possession of to suppress the emotional pain he was feeling.

Ms Boast says that Mr Mitchell has worked hard in counselling to fully process not just the loss of his father but also the loss of a male role model through his early adult years. He has also worked on a deep underlying sense of worthlessness and poor self-esteem. She has seen improvement in these areas and although he still fears future loss he now possesses greater strength and strategies to deal with it. The Department submitted that this suggests that at this stage Mr Mitchell’s treatment remains in progress and he continues to require ongoing support to address the triggers to his drug use, and, as Mr Mitchell has not indicated in his material that he has been faced with similar triggers since seeking support and how he has managed those triggers, that this is a risk factor.
Ms Boast noted in regard to protective factors that Mr Mitchell had built a good support system by way of his teammates having returned to playing football. He has become far more productive with his time in the time since he was charged. He now attends the gym regularly and his football team training. He has gone from part-time to full-time hours with his work. He is passionate about what he does and does not see it as a job but as a career. She noted that Mr Mitchell plans to continue counselling and has committed to being honest about any future desire to use drugs. He is also committed to bettering himself and his mental health through reading about self-improvement. He is looking into self-improvement courses. When issues and losses have arisen Mr Mitchell has demonstrated that he is willing to reach out to Ms Boast for support and guidance rather than reverting to previously unhealthy behaviour, he is also showing greater self-reliance and an understanding of how to use the strategies they have worked on when unexpected changes occur. Ms Boast stated that sport offers Mr Mitchell a physical outlet and drives a desire to improve his physical health along with working on his mental health. Through their counselling sessions he has learnt breathing techniques and meditation which he has connected with well and enjoys. He is also working on techniques to notice and combat the negative self-talk and self-defeating behaviours.
Ms Boast provided evidence at the hearing. She confirmed that Mr Mitchell had had five more sessions since the report with the last session in July 2022. She was asked if she recalled why he had commenced seeing her. She said he had completed the mandatory sessions with Drug Arm and the psychologist there recommended her for continued counselling. She said she had seen the blue card reasons document and was able to list the offences that Mr Mitchell had been convicted for. She confirmed in her sessions she had discussed significant substance abuse and consequences of alcohol. She was asked whether, when he had gone away with the football club, alcohol had been an issue and replied that she was not aware. She was asked about the extent of Mr Mitchell’s drug use. She said he used cannabis fairly consistently. She was asked about him purchasing cocaine and said that this occurred after his relationship broke down to cope. She was asked what period of time Mr Mitchell had used cannabis consistently for. She stated she did not know when he started smoking cannabis. She was asked if the treatment she provided related to cannabis addiction. She said drug addiction is not her area of speciality. She said her focus is why the drugs were used to self-medicate, why he was turning to the use of cannabis, and working on specific techniques for use if triggered, self-worth and self-esteem, alternative actions, increasing Mr Mitchell’s support network – all of those things.
Ms Boast was asked if Mr Mitchell had ever reported a dependency on drugs. She replied not beyond use of cannabis. He did the at beginning and then stopped. He was experiencing desire to use cannabis until the middle of last year, June/July last year. She was asked if he had reported any recent drug use and said no. She was asked if she was aware why he had not attended with her. Ms Boast said there were scheduling issues and there was a session set for next week. She said they were continuing to work on techniques to counter negative self-worth. She was asked if there are risk factors to engaging in drug use. She said not anymore. She was asked if there were previously. She said Mr Mitchell has insight into how drug use could impact on him, using his understanding of why abuse of cannabis was serious, and how vulnerable people need to be protected and what he did was illegal. She said she supported him obtaining a blue card allowing him to work with children. There were protective strategies, such as working on negative self-worth, and externalising techniques. He knows not to trust but question validation, and find activity which is productive. He engages in guided meditation and has a large written list of things which make him happy and give him a good coping mechanism. He has been told to reach out to his supports. In regard to the types of issues he faces, she said when Shane Warne passed he took that seriously. He phoned her and talked about the loss. Other losses included the father of a friend. They talked about how to deal with emotions. When asked what the triggers for his drug use are, and whether friendship and social interests were ever a trigger of use she said triggers were a lack of friends, being bored and isolated, and having low self-esteem. She said was not aware of his drug use with football teammates. She said she was confident in him being able to abstain from any drug use in similar circumstances. He has strategies and his career. He does not want to put his career in jeopardy.
The Department submitted that a blue card is transferrable and Mr Mitchell if issued with one has unfettered access to work with children in any child related-employment or conduct any child-related business, supervised or unsupervised, regulated by the WWC Act, not just for the purposes for which he has sought the card. If issued with a blue card, he could work with children of any, age, gender or vulnerability. It submitted that 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. The Department submitted that the Tribunal must consider transferability of notices under the WWC Act when having regard to the best interests of children.
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 Mr Mitchell such as his right to privacy and reputation (HR Act s 21), right to take part in public life (HR Act s 23), right to further vocational education and training (HR Act) s 36(2) and cultural rights (HR Act ss 27-28). I note Mr Mitchell asserts that his right to work must be considered having regard to the decision in Storch. Also relevant are 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 in s 26(2) of the HR Act. The Department submitted that a decision that Mr Mitchell’s case is an exceptional case will be nevertheless compatible with human rights. This is because, despite any limit the decision places on Mr Mitchell’s human rights, the decision will be justified by the factors in s 13 of the HR Act. that is 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 Mr Mitchell’s human rights is consistent with the object of the purpose and paramount principle of the WWC Act: that is, the welfare and best interests of children are paramount.
The Department submitted that the decision in this case is not whether Mr Mitchell can be a disability support worker. The decision before the Tribunal is whether, having regard to the paramount principle under the WWC Act, Mr Mitchell’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. It 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. It submitted that overall the material indicates various triggers have led to Mr Mitchell using drugs into mature adulthood. The Department acknowledges the positive changes made by Mr Mitchell since his offending in 2020. However it submits these positive changes must be considered in the context of his drug use over many years, in particular his use of cannabis in March 2021, despite his attendance at drug diversion in October 2020. The Department submits insufficient time has passed to test Mr Mitchell’s ability to abstain from drug use when faced with the various triggers to same. Accordingly, the Department submitted Mr Mitchell’s case remains an exceptional case in which it would not be in the best interests of children for him to be issued a blue card at this time.
Mr Mitchell summarised his protective factors as follows:
(a)He attended the mandated the drug diversion which led to sessions with Ms Boast, and she has provided him with breathing exercises and meditation books and strongly suggested re-joining football;
(b)He has attended therapy sessions since 24 February 2021; she explained that being active may be able to help him, so he joined a gym;
(c)The help of friends and family in times of need is also a strategy, being able to open up to people now when he would not have been able to before seeing Ms Boast; and
(d)The responsibility to his current clients is also a protective factor as he does not want to let them down and his increased workload has made him understand how his offending behaviour could have put his career and relationship with his clients at an end.
The Department acknowledged these protective factors Mr Mitchell states he has implemented in his life, but submitted that these must be viewed in conjunction with his history of illicit drug use which commenced when he was 21 years old and which has been, on his own account, exacerbated by life stressors. Ultimately, the Department submitted insufficient time has passed for Mr Mitchell to demonstrate his long-term stability such that the likelihood of him reoffending has been minimised, particularly when faced with similar life stressors.

Discussion

Mr Mitchell held a blue card issued in 2018 to enable him to work in the aged and disability care sector. His police information changed as a result of drug charges in regard to cannabis, cocaine and utensils in 2020 and the Department reviewed his entitlement to a blue card and assessed that he should be issued with a negative notice. Mr Mitchell’s criminal history also included a charge of being intoxicated in a public place in 2015 and at the hearing Mr Mitchell revealed that he had a drink driving conviction from 2014. From the evidence it is clear that Mr Mitchell had used both cannabis and cocaine at various times between 2010 and 2014. His evidence was that he had stopped using drugs for a six-year period until he had a relationship breakdown during the Covid-19 pandemic and that as a result of the combined stresses of the breakup and the social isolation due to Covid he has resorted to cannabis as a way of dealing with his problems. This was supported by the evidence of his sister Ms Mitchell who lived with him at the time and noted the relationship breakdown during the pandemic and also that of his psychologist Ms Boast who related his use of cannabis not only to the relationship breakdown but also underlying issues with unresolved grief around his father’s passing in 2006.
Mr Mitchell has shown a commitment to dealing with the issues that resulted in him using drugs and has ensured that he has put in place the strategies which he has developed with Ms Boast including joining a football club, yoga and meditation and having an active support network. Ms Boast states that Mr Mitchell has expressed deep regret for his actions and an understanding of the magnitude of his wrongdoing, and that he appreciates why his offences led to the suspension of his blue card and the need to protect children and vulnerable members of society. Mr Mitchell also made it clear that he understands why it would not be appropriate for someone under the influence of drugs to have the care of children. As has previously been acknowledged by the Tribunal insight into one’s wrongdoing is an important protective factor as a party is less likely to reoffend if they have insight into the effects of their wrongdoing.
Mr Mitchell has not tried to minimise his offending as a one off which he could have tried to do having regard to only having one set of drug offences. He has acknowledged that at the time he did not have appropriate coping skills to deal with the loss of the relationship and he has spent considerable time in exploring his triggers and developing the coping strategies with Ms Boast and made the life changes to ensure that he has the coping mechanisms he needs on an ongoing basis to avoid a return to reliance on illicit substances. He has also made it clear that he is motivated to not offend to ensure that his career is not at risk and this goes to explain why he has gone to a great lengths through Ms Boast to recognise his triggers and change his life to ensure that he will not re-offend.
The Department while acknowledging the protective factors in Mr Mitchell’s life is concerned that insufficient time has passed to show that Mr Mitchell will not reoffend and he has not been exposed to similar triggers such as the loss of a relationship again. I note Ms Boast’s and Mr Mitchell’s evidence was that he had contacted her as a result of the passing of Shane Warne which affected him and they had been able to deal with it. There was also the loss of a friend’s father. Clearly Mr Mitchell will enlist his support network to deal with issues as they arise. Ms Boast was also confident that Mr Mitchell was appropriate to have a blue card to enable him to work in child-related employment.
The Department was also concerned about Mr Mitchell’s history in regard to alcohol with a drink driving conviction in 2014 and a conviction for being drunk in a public place in 2015. Mr Mitchell acknowledged the inappropriateness of his actions in relation to these offences and noted that there had been no further incidents in regard to alcohol and now that he was playing football he was usually limited to 2 beers after a game. Simon Fenton who knew Mr Mitchell through football indicated that Mr Mitchell’s consumption of alcohol was limited. While I accept the Department’s submissions that drinking in excess shows poor choices and can place others at risk I accept that Mr Mitchell has shown since that time that he does not excessively consume alcohol and it is not a risk factor. I note that Mr Fenton was unaware of any drug use by Mr Mitchell and on becoming aware made it clear that he still supported him obtaining a blue card and said had observed undertake his role as a carer and he is really good at it. Mr Fenton who had observed him at the football club said he had been around children all his adult life and he had never seen him do anything wrong.
The Department had concerns over Ms Mitchell and Mr Innes as they were aware of Mr Mitchell’s drug use and did not raise issues and may not be appropriate supports for him, and their opinion that he should have a blue card needed to considered in that light. Clearly Mr Innes is a cannabis user and showed tolerance for Mr Mitchell’s use. Mr Mitchell made it clear that while she knew Mr Mitchell was using cannabis while he was living with her that he had now stopped using and he had made positive changes following his sessions with the psychologist. So in her case there is recognition that the steps he has taken are positive.
The question for the Tribunal is whether this is an exceptional case where it would not be in the best interests of children for the chief executive to issue a positive notice. The paramount principle requires that welfare and best interests of a child are paramount and those must be considered to the exclusion of Mr Mitchell’s issues in regard to him not being able to have the advantage of a blue card. Mr Mitchell has a history of using illicit substances and there is a risk that he may reoffend. If he reoffended at a time he was providing care to a child that would put that child at risk. Mr Mitchell acknowledges that it would be inappropriate for him to provide care to a child while he was under the influence of offences and that he has a set of triggers which may predispose him to the use of substances which is an additional risk factor.
These risk factors have been thoroughly explored by Mr Mitchell with the support of his psychologist, Ms Boast, and a set of strategies have been developed and Mr Mitchell has them put in place to ensure that he does not resort to substances to deal with any future trigger events. The undertaking of this work and its carrying out are protective factors to deal with the identified risks. The Department has some concerns about the reliability of some of Mr Mitchell’s support network but clearly he has strong support from Mr Fenton who has known him for 21 years and there is no involvement of substances with him and so his support is not tainted. The Department is concerned that only limited time has passed to show that the work that has been done to ensure that Mr Mitchell will not use substances again. There is always that risk. I am satisfied, having regard to the extensiveness of the work done by Mr Mitchell and his commitment to ensure that he does not place his career, which he is dedicated to, in jeopardy, that the risks are minimised.
Regard need not only be had to the paramount principle but also the HR Act in terms of the general rights of children. I am comfortably satisfied having regard to the consequences of my decision that this is not an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice to Mr Mitchell.
The order of the Tribunal is as follows:
1.The decision of the Director-General, Department of Justice and Attorney-General that Mr Mitchell’s case is “exceptional” within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunals decision that there is no exceptional case.