Ms v Department of Communities (Disability Services)
[2011] QCAT 709
•25 November 2011
| CITATION: | MS v Department of Communities (Disability Services) [2011] QCAT 709 |
| PARTIES: | Ms MS |
| v | |
| Department of Communities (Disability Services) |
| APPLICATION NUMBER: | GAR127-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 4 August 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Julie Ford, Presiding Member Michelle Dooley, Member |
| DELIVERED ON: | 25 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision made on 26 March 2010 to issue a negative notice to Ms MS is set aside and a positive notice is to be issued forthwith to Ms MS. The tribunal prohibits the publication of the name of the applicant and the names of the witnesses and referees and of the organisations in the decision relating to application GAR127-10. |
| CATCHWORDS: | Employment screening – criminal history – negative notice – exceptional case – best interests of people with a disability Non publication order – public interest – exposure of vulnerable people Disability Services Act 2006, ss 19, 76, 85(2), s85(11) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms MS |
| RESPONDENT: | Department of Communities (Disability Services) |
REASONS FOR DECISION
HISTORY TO THE APPLICATION
Ms MS is 46 years old and had been working with a non government organisation and required a positive notice (a yellow card) to be engaged by a funded non-government service to work with people with a disability. The Department of Communities (Disability Services) issued her with a negative notice on 25 March 2010. Ms MS had an extensive criminal history, with convictions for offences for which the Court that convicted her imposed imprisonment orders.
Ms MS’s offences were not serious offences as defined in s 79 of the Disability Services Act 2006 (the Act). The decision maker balanced the risk factors and considered that Ms MS’s was an exceptional case in which it would not be in the best interests of people with a disability to issue her with a positive notice (that is, to be eligible to work with people with a disability in Queensland).
Ms MS applied for a review of this decision to the Queensland Civil and Administrative Tribunal and the review was heard on 27 July 2010. At this hearing the decision by the Department was set aside and Ms MS was granted a positive notice.
The Department lodged an appeal of this decision on an error of law. The Appeal Tribunal heard the appeal on the papers. On 8 April 2011 the appeal was allowed. The decision of the Tribunal on 27 July 2010 was set aside and the application for review was returned to the Tribunal for reconsideration. The Tribunal reconsidered the matter on 4 August 2011 at a formal oral hearing.
THE LAW TO BE APPLIED
This review application proceeds under the review jurisdiction in Chapter 2 Pt 1 Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 and is by way of a fresh hearing on the oral and written evidence before the tribunal.
Section 76 of the Disability Services Act 2006 (the Act) provides that the paramount consideration in making employment screening decisions is the right of people with a disability to live lives free from abuse, neglect and exploitation.
The tribunal is directed by the principles of the Act to acknowledge the rights of people with a disability and to ensure that disability services respond to the needs of people with a disability.
Under section 11 of the Act people with a disability include persons with intellectual, psychiatric, cognitive, neurological, sensory or physical attributes, or a combination of those attributes that result in a substantial reduction in the individual’s capacity to communicate, socially interact, learn, be mobile, self care or manage their affairs, and the person needs support.
The Act provides a charter of rights for people with a disability. They relevantly include the right to live their lives free from abuse, neglect or exploitation (s 19(2)) and to receive services safely (s 19(3)).
The central focus of the Act is the protection of people with disability. It is not a statute intended to impose additional punishment on a person who has a criminal history. Rather it is intended to put gates around employment to protect people with disability from harm.
Ms MS’s offences were not serious offences as defined in s 79 of the Disability Services Act 2006 (the Act). The decision maker considered that Ms MS’s was an exceptional case in which it would not be in the best interests of people with a disability to issue her with a positive notice (that is, to be eligible to work with people with a disability in Queensland), pursuant to s 85(4) of the Act.
The decision making process of the Department, and now the tribunal, is guided by the High Court decision of M v M (1988) 82 ALR 577, that is, the purpose of employment screening is not to retry the applicant’s case. We are not a court exercising criminal jurisdiction.
The central focus of the Act is on the protection of people with a disability. In Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, McPherson JA confirmed the principle that the welfare and best interests of a child was the paramount consideration “to which all others yield”. This judgement also endorsed an approach which balanced protective and risk factors to determine whether an exceptional case existed. In Maher’s case the tribunal undertook an exercise of identifying risk factors and protective factors in assessing the risk of harm to children. As risk of harm to the best interests of people with a disability is central to Ms MS's review application, this approach similarly applies.
Risk factors may vary from the perspective of the assessor, but more particularly will vary according to the known facts. On one view of it, the existence of previous convictions means there will always remain the possibility of a risk to the safety of the community. Risk in the context of the tribunal is not concerned with what may be mere possibilities, but rather will require some foundation in fact. The tribunal is looking at whether, in all circumstances, there is real and appreciable risk. It does this as part of its consideration of whether an exceptional case exists.
The tribunal is guided by the judgement of Young CJ in Eq in Commission for Young People v V (2002) NSW SC 949 in paragraph 42 of his judgement where he refers to the necessity to find “a real and appreciable risk”, in that case, to the safety of children.
The test in Briginshaw v Briginshaw (1938) 60 CLR 336 is applicable. In assessing whether or not an exceptional case exists, in the Maher case, the Queensland Court of Appeal held that “… the tribunal [is] required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.”
The Act does not define what constitutes an exceptional case. The law is well established that it is a matter of discretion depending on the individual circumstances pertaining to the case (Re Imperial Chemical Industries Ltd Patent Extinction Petitions [1983] VR 1, Fullagar J).
In Kent v Wilson [2000] VSC 98 (24 March 2000), Hedigan J. cautioned against any attempts to define exceptional circumstances but concluded that behaviour that was ‘not typical’ of the applicant did not mean that exceptional circumstances had been established.
In the marriage of Sandrik [1991] 104 FLR 394 at 399-400 “exceptional” was described as to “take it out of and beyond the ordinary circumstances reasonably expected to occur”.
In determining whether there is an exceptional case as mentioned in section 85(5) of the Act the Director-General (and the tribunal at review) is obliged by section 86(2) to have regard to the following:-
(a) in relation to the commission, or alleged commission, of an offence by the person –
(i)whether it is a conviction or a charge; and
(ii)whether the offence is a serious offence and, if it is, whether it is an excluding offence; and
(iii)when the offence was committed or alleged to have been committed; and
(iv)the nature of the offence and its relevance to engagement that involves people with a disability; and
(v)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 section 122, the court’s reasons for its decision.
(b) any information about the person given to the chief executive under section 114A or 114B;
(c) a report, if any, about the person’s mental health given to the chief executive under section 114I;
(d) any information about the person given to the chief executive under section 114K or 114L;
(e) anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers being relevant to the assessment of the engaged person.
A decision maker may consider any other matters within the subject matter, scope and purpose of the Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 16 CLR 24 at 36-40 per Mason J).
One such consideration is that of Ms MS’s insight into the consequences of her actions. The issue of insight has been highlighted in TAA re [2006] QCST 11 (26 June 2006) in which the tribunal commented as follows:
“A person aware of the consequences of his actions on others is less likely to re offend than a person who has no insight into the affect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely affect on children”.
People with a disability are similarly a group of vulnerable people who can be highly dependent on others.
The tribunal is guided by the decision of the Full Court of the Federal Court of Australia in McDonald v Director General of Social Security (1984) FCA 57 at p 357 which is considered to be a leading authority in regards to the imposition of an onus on ‘parties’ in administrative review proceedings. In that decision it was observed that:
“The tribunal is not bound by the rules of evidence. It has before it all the material that was before the person who made the decision under the Act and which is the subject of the review before the AAT. Additional material may be placed before the AAT. As a matter of convenience, the Director normally appears to assist the Tribunal, but the Director General is not to be treated in the same way as a party to proceedings before a Court. In Sordini v Wilcox (1982) 42 ALR 245, a review under the Administrative Decisions (Judicial Review) Act 1977, the administrative body whose decision was being reviewed appeared before the Court. At p.255 Northcorp J said:
“It is equally important that in reviews by the AAT of decisions by administrative bodies such as the Director-General, or his delegate, in which there were no adversary parties, the AAT receive the assistance of persons acting on behalf of the administrative body. Likewise, in appeals of this Court form the AAT on questions of law, it is important that the Court receive the assistance of counsel appearing for the administrative body. This practice, however, which gives the outward appearance of an adversary system, should not be allowed to obscure the true position, and in particular to justify the introduction of concepts of onus of proof into the determination of claims under the legislation where no onus of proof in the legal sense arises. This view, quite correctly, has been acted upon by the AAT in the past”.
Further Supreme Court and Federal Court decisions have addressed the imposition of onus on a party, relevantly:
In Re Jeganathan Nagalingam v Minister of Immigration, Local Government and Ethnic Affairs and Noel Barnsley [1992] FCA 470 “it is now well established that it is rarely appropriate to speak in terms of onus of proof in relation to administrative decision-making (see McDonald V Director-General of Social Security (1984) 1 FCR 354 at p357; Swan Television and Radio Broadcasters Ltd v Australian Broadcastings Tribunal (1985) 61 ALR 319 at p324)”.
The tribunal’s role is to stand in the shoes of the Department, and for the parties to place before the tribunal relevant information. The tribunal is able to inform itself as it sees fit. Neither of the parties, nor the tribunal, bears any onus of proof.
After reviewing the decision of the Department, the tribunal may confirm or amend the decision; set aside and substitute its own decision; or set aside the decision and return it to the original decision maker (s 24 QCAT Act 2009).
Both oral and written evidence was provided to the tribunal and has been considered in the tribunal’s deliberations. The tribunal must consider the intention of the legislation, the emphasis on the discretionary rather than the prescriptive approach to the concept of exceptional case and the factors in combination that may constitute exceptional case.
The Evidence Before the Tribunal
Ms MS
Ms MS presented her life story to the tribunal in written and oral form. She grew up as one of six children in a family with a father who was an alcoholic who physically, sexually and emotionally abused most of the children in the household. She witnessed domestic violence and lived in fear of her father.
Following disclosures by the children when Ms MS was a teenager, her father pleaded guilty to sexual abuse and was sentenced to imprisonment, serving 18 months in total.
Ms MS attempted suicide at the age of 18 years old with two stays in hospital after cutting her wrists and overdosing on drugs.
Ms MS had three children to K before their relationship broke up. She had two more children to J who was an alcoholic and during these years she smoked cannabis.
At age 35, Ms MS commenced a relationship with M who became more and more abusive to her. He introduced her to speed and he commenced a four year period of domestic violence. On one occasion he stabbed J the father of two of her children and served a term of imprisonment for this.
Ms MS’s children were taken into care in this period, she was blacklisted by the Department of Housing due to significant damage caused by M and she lost her friends. In 2005 Ms MS left M and found she was homeless. This was the turning point of her life where she realised she could not go any lower. Ms MS focussed on improving her life, commenced her own cleaning business, and sought support from agencies to achieve her goals. She needed to have her children returned to her. A community group helped her get a house. She has a Certificate 111 in Small Business.
Ms MS has been working with the NGO since 16 August 2009 and worked in a support program until December 2010 when she moved within the organisation to another service. While with her first role she supported adults with a disability in a variety of ways including personal hygiene and community living.
Ms MS is in a job that she loves, she has her children with her and she is working with people who have similar journeys to her own. She is drug free and that is evident in the drug screen tests submitted to the tribunal to show that she is clean. She has not taken drugs for four years.
Ms MS submitted that she did use drugs and had been convicted for doing so. She was ashamed of her criminal activity and wishes she could change that period of her life. She lived in an abusive relationship with a man who was also a drug taker. Her life had been full of despair and misery. The turning point for her was at the end of the relationship and in finding herself homeless. Ms MS has now found her passion in her work at the NGO.
Of particular import, in ensuring that she would not return to her previous life, Ms MS stated that her family supported her now.
Witnesses
M C – Team leader
Mr C submitted that Ms MS had been up front with her past when she interviewed for the original position within the NGO in August 2009. In her time of employ within this program she supported adults with disabilities in a variety of ways including personal hygiene and community linking. To him, Ms MS is a reliable, honest and steady worker with a great work ethic, clear professional boundaries and respectful with clients. She treated them with dignity and respect.
Mr C considered that Ms MS acted honourably at work and was working hard to make a productive, independent life for herself. Mr C has worked for nine years at the NGO and he confirmed that Ms MS is very aware of the vulnerabilities of people with disability. She brings insight and wisdom to her role and is able to work with people from a range of backgrounds. He has not had the slightest concern regarding Ms MS.
Mr C stated that the organisation has regular reviews, one on one supervision and ongoing observations of staff in the workplace. He has not seen Ms MS breach the professional boundaries required in their work. She has found the right balance, being friendly and gently appropriate.
B K – HR Manager
Ms K considered Ms MS to be a committed and enthusiastic employee who has gained the respect of her fellow colleagues and the people receiving services. She would be a loss to the organisation if she were to move on. Ms K stated that Ms MS had made every effort to be involved in the organisation and she had worked hard to improve her skills and knowledge.
Ms K stated that the hard work had been recognised and Ms MS had been given the opportunity to take on new roles, such as her current position of information and referral worker.
Ms J B – Team Leader
Since April 2010, Ms MS has been working in this service regime, putting her in the front line responding to enquiries. She converses with people with very complex needs with respect and integrity. Ms MS manages the administration requirements for the team and assists with coordinating events.
Ms B supervises Ms MS, discussing performance, training needs and future projects. Ms MS has a great work ethic and is a vital member of the team. Ms MS has developed respectful working relationships with clear boundaries. She is a valued asset not only to the team but to the sector in general, proving she has the values and skills needed within the sector.Ms B had watched Ms MS’s struggle to take up the challenges of her current role and to grow into a confident colleague.
Ms S P – Professional Counsellor
Ms P gave evidence that Ms MS receives counselling to deal with issues arising from the gross abuse and maltreatment she experienced during her childhood years. She sought counselling to continue the gains she had made in her life and to put the issues to rest.
Ms MS has shown resilience in recovering from the abuse of her childhood and in relationships with male partners marred by domestic violence. Ms P saw these gains as a tribute to her excellent values and her growing belief in herself. Ms P was absolutely certain that there would not be a repeat of the drug issues which were the basis of the criminal behaviour, much of it attributed to the misuse of power by the kinds of men Ms MS had once chosen as partners. Her grooming in childhood by her father was the background for Ms MS’s subservience to these men.
Ms MS has now developed a strong sense of herself, including her wanting to contribute to the wellbeing and welfare of children. She has demonstrated outstanding insight into the causes of her antisocial behaviour, developing ways to behave constructively. She has worked very hard to put her life on an honourable and constructive track.
Ms P believed that Ms MS was more than remorseful for her criminal past. She realises what she could have achieved with her life, that she had hurt other people, and how her abusive childhood had impacted on the path she had taken. Ms MS had eagerly developed insight and has acted on that knowledge and understanding.
Mr M D – Consultant
Ms D is a registered social worker and teacher with 30 years experience in family and youth work, counselling and advocacy. He is employed as a consultant counsellor and assisted Ms MS in her submissions to QCAT.
He submitted that Ms MS has the full support of the management and staff of the NGO as a valued, ethical and skilful employee and colleague. He supported this view after several interviews with her and management. He submitted that the organisation “has had great success in employing people with life experiences similar to their clients and provides an excellent supportive work environment utilising continuous improvement, professional development and line management supervision to develop all staff in what is a challenging high impact specialising with homeless people and people with disabilities most of whom have significant mental health and addiction issues”.
Ms C S – Sister
Ms CS was Ms MS’s support person at the hearing, but had given written evidence. She is employed in a management role and has worked for a government department for 20 years.
Ms CS stated her sister had a criminal history she was aware of and that several years ago she had become homeless due to domestic violence and had lost her children to care. Since then Ms MS has made commendable and positive changes, securing a home, having her children returned, running a successful cleaning business, obtaining a driver’s licence and purchasing her own car.
In overcoming the many hardships throughout her life, Ms MS was strengthened in her resolve to better herself and it has served her well in her current positions. Her work fills her with happiness.
Ms CS wrote "I think it is important to note that there are few people I would write a character reference for. But you see I spend a lot of time with MS and I know her story and her journey and that she offers no threat to anyone”. Ms CS felt honoured to have her sister in her life and she was proud of her accomplishments.
The Department’s submissions
The Department did not call witnesses for the hearing and relied on its Statement of Reasons for the issue of a negative notice dated 2 May 2010; and accompanying documentation being a criminal history assessment report and written references. The Department’s position is summarised below.
The Department of Communities (Disability Services) is guided by the Disability Services Act 2006 and assessment guidelines, criminal history screening of persons engaged by funded non-government service providers. PM is one such provider.
In conducting the screening process, the Queensland Police Service Information Centre advised that Ms MS had been convicted of a large number of offences, in particular drug related offences over the period 1984 to 2009. Ms MS’s most recent conviction of ‘possessing dangerous drugs’ and ‘possess utensils or pipes’ on 28 October 2009 speaks to the probability that Ms MS has not overcome drug use or potential addiction. On this basis, there is a high risk that she may be vulnerable to committing further drug associated offences. Her offences are not defined as serious offences.
Under section 85(4) of the DSA, the Department was satisfied that Ms MS’s was an exceptional case in which it would not be in the best interests of people with a disability to issue her with a positive notice. Ms MS had been convicted and sentenced on one occasion to three months imprisonment wholly suspended for two years for the offence of ‘supply dangerous drugs’. This offence is an offence against s 6 of the Drug Misuse Act 1986 and is considered to be serious in nature. The various drug offences are considered to be directly relevant to any engagement that involves people with a disability.
The Department noted that at 45 years old, Ms MS had not worked with people with disability or in the disability sector prior to her engagement with the NGO. The issuing of a negative notice would not cause irreparable (sic) or adversely affect Ms MS’s ability to gain meaningful employment in the future. Her cleaning business was still operating with some services outside of the NGO employment, according to her original written submission to the Department.
Given the vulnerability of some clients with a disability to offences characterised by exploitation, the risk factors were balanced and the Department determined that clients may be placed at an unacceptable risk were Ms MS to obtain a positive notice. Despite the number of references in support of her application, including a letter from her psychologist, the Department concluded that there was sufficient information to be satisfied that this was an exceptional case in which it would not be in the best interests of people with a disability for Ms MS to be able to work with them.
Discussion of the evidence
The decision to issue a negative notice is a discretionary matter. The paramount consideration for the tribunal is the right of people with a disability to live lives free from abuse, neglect and exploitation.
In determining whether there is an exceptional case as mentioned in s 85(4) of the Act, the Director-General (and the tribunal at review) is obliged by section 86(2) to have regard to the following.
Whether there is a conviction or a charge
Ms MS has convictions regarding wilful damage and unlawful destruction of property, possession prohibited plant, possession pipe (1984); obscene language (1985); breach probation (1986); fail to properly dispose of needle and syringe, possess utensils or pipes; contravening an order, possess utensils or pipes (2004); fail to properly dispose of needles and syringes, supply dangerous drugs, possess dangerous drugs; possess property suspected of being used in connection of a drug offence; contravene direction of requirement (2005); wilful damage unknown date/between 7/6/2002 – 4/4/2005 (2006); possess dangerous drug, possess utensils or pipes on 19/7/2009 (28/10/2009 conviction).
Whether the offences are serious
The offences are not defined as serious offences under the Disability Services Act 2006. The department acknowledged that the offence of supply dangerous drugs did not appear to have been one of aggravated supply under the Drugs Misuse Act 1986, s 6(2). Such an offence will only be defined as a serious offence under the DSA if it is one of aggravated supply.
When the offences were committed
The offences were committed in 1984, 1985 and 2004, 2005 and 2009.
Nature and Seriousness of offences
The Department considered the ‘supply dangerous drug’ offence as serious in nature as Ms MS had supplied cannabis to another person. Possessing cannabis sativa and LSD were considered to be moderately serious in nature. The remaining offences wee considered less serious in nature.
Relevance of the offence to the particular job
The Department submitted that “any action or actions by a person that demonstrates disrespect for the law or another is relevant to all roles that provide support or care to persons with a disability.”
Length of time since the offence took place
The offences occurred between 27 years ago and two years ago.
Ms MS wrote that in the last conviction the drugs were not hers. The Department submitted that the last offences have not expired regarding the applicable five year rehabilitation period under the Criminal Law (Rehabilitation of Offenders) Act 1986.
Pattern of behaviour indicated by the number of offences
The Department submitted that as the applicant has been convicted of a number of drug charges, this demonstrates a pattern of drug related criminal behaviour.
Ms MS’s evidence regarding the period 1984-1986 primarily involved the use of marijuana, which was used socially over a longer period of time.
The previous evidence from Ms MS is that the 2004-2005 offences were at a time when she was in a domestic violence situation. She sustained physical abuse and violence with black eyes and bruises caused by fists, and hot water had being poured on her arm. The rented property in which they lived was badly damaged with a $10,000 damage bill. Her money was controlled, she was isolated from her family and friends and she experienced verbal humiliation and put downs. She was coerced into using harder drugs by a violent partner.
The 2009 offence was an attempt to shield her son from further prison, the drugs were not her own and she wanted to protect him.
Whether the offence was committed as an adult or juvenile
The first offence was committed when Ms MS was 19 years old. In 2009 she was 44 years old.
In case of a conviction – the penalty imposed
The courts have imposed monetary fines on some of the drug offences ranging between $100 and $750. In 2005, Ms MS has had 3 months imprisonment wholly suspended for two years for the offence of ‘supply dangerous drugs’. She has also been sentenced to 12 months probation for the offence of ‘wilful and unlawful destruction property’ in 1984. She was later dealt with on 2 April 1985 for a breach of the probation order. The court imposed 80 hours community service for the offences of ‘possession prohibited plant’ and ‘possession pipe used in connection with smoking dangerous drug’.
Other factors
Negative factors not in contention
Both parties acknowledge that Ms MS has a history of drug related offences from 1984 to 2009.
Protective factors not in contention
No protective factors were identified by the Department.
Other factors considered by the tribunal
The tribunal considered protective factors evidenced in the material before it as well as the negative factors evident.
The Department is concerned with the recent drug offence and conviction in 2009, determining that Ms MS remained a risk to people with a disability. Also the department submitted that there was no evidence that Ms MS had undergone drug or alcohol rehabilitation.
The Department had argued that as Ms MS had not worked with people with a disability or in the sector previously, the issuing of a negative notice would not cause irreparable harm or adversely affect her or her ability to gain meaningful employment outside of the disability sector.
The Department had evidence supplied by referees and by Ms MS herself. While reference was made to them in the Department’s submissions, there was no evident acknowledgement by the Department of the gains that Ms MS was clearly making at that time. Her history of domestic violence and of childhood abuse received scant analysis in any of the submissions supplied by the Department to the tribunal.
The decision to issue a negative notice is discretionary and the tribunal has taken a broader view to Ms MS’s case. We are able to consider other factors relevant to the decision.
There is evidence that Ms MS is addressing her drug related behaviours and criminal offences through her counselling with her psychologist. Addressing the underlying abuse aids in developing insight into offending behaviours.
There is evidence that she has not reoffended since the 2009 conviction. Two drug tests were submitted that were negative.
Of significance is that there is evidence that Ms MS has shifted away from her previous patterns of behaviour. She is not in a violent relationship; she is not isolated from her family or friends. She is acting responsibly as a mother. Numerous witnesses spoke of their conviction that Ms MS was not continuing in drug related activities, that she was insightful to the impacts of her destructive lifestyle and that she had turned her life around. Ms MS has worked for the NGO for over two years now and is considered exemplary in her work with vulnerable people by her management and colleagues.
Findings
The tribunal has proceeded with this review on the basis that an assumed risk is present on the current facts. However, in weighing up the risk and protective factors the tribunal also looks to the balance of probabilities as to whether Ms MS might cause harm to the best interests of people with a disability in the future. Can the tribunal be satisfied that there is not a real and appreciable risk to people with a disability?
Ms MS has grown up in a cycle of abuse at the hands of men she loved and trusted. She did not experience a safe, secure and loving home environment as a child, nor did she achieve those fundamental requisites to a normal life in her relationships.
Ms MS’s history of offences and convictions is not in contention. Relevantly, are Ms MS’s current and future positive prospects able to be sustained, devoid of criminal behaviour? Her witnesses, professionals who have worked for years with disadvantaged and vulnerable people, including people with a disability, think so. The tribunal was impressed by the calibre of these professionals, by their own dedication to their work, but also by their unfailing support of, and belief in, Ms MS. They do not consider Ms MS to be a risk of harm to the best interests of people with a disability. Conversely, her rehabilitated character and her personal experiences are considered by them as an asset to the work undertaken within the organisation.
The tribunal finds that the positive factors outweigh the negative factors. Ms MS is successfully challenging the previous patterns of destructive behaviour. She is currently drug free, with two recent drug screen tests showing a negative result. She is holding down a job in an environment which gives her a clear sense of fulfilment and of purpose. She is well supported by colleagues who have been unfailing in their belief in her hard work and in her growing insight into the consequences of her past and her actions as an adult.
A further protective factor is that Ms MS has her children back with her and she is supported by family. It was evident to the tribunal that her sister is a positive and critical stakeholder in her life and that she is very proud of Ms MS’s achievements. There is much for Ms MS to keep her focussed on continuing to rehabilitate.
The tribunal also finds that Ms MS is well liked by her colleagues. The tribunal was impressed by their warmth and seemingly genuine care for her. A welcoming work environment that also conducts its business against clear standards required for government funding is a further protective factor. Ms MS is treated no differently than other employees and is required to be a part of regular reviews and supervision by her seniors in her current endeavours.
The tribunal is satisfied that Ms MS has gained insight and understanding into her childhood experiences and into the criminal life she led while in abusive relationships. Ms MS has impressed the tribunal with her determination to continue her rehabilitation, her counselling when required and her desire to further herself with ongoing studies and opportunities within her working life. Ms MS is considered to have great empathy with vulnerable people and that is attested by the trust placed in her by her colleagues.
Ms MS is demonstrating that she has the capacity to make prudent choices and that she is no longer over borne by abusive partners or by any drug addiction. Ms MS has achieved much by her own determination as well as through the support of many people who know her personally and professionally. The tribunal does not find that her case is an exceptional case in which it would harm the best interests of people with a disability for her to have a positive notice and be able to work with them. Against the light of the evidence Ms MS does not present an unacceptable risk to people with a disability. Indeed, the evidence weighs heavily on the side of her being an asset to any endeavours organisations may take to support people who are vulnerable.
Conclusion
The tribunal must ensure that people with a disability are protected and not harmed in the review decisions it makes. In this case, Ms MS was not given a positive notice as the Department found hers was an exceptional case in that it would harm the best interests of people with a disability for her to have a yellow card. This decision was against a background of drug offences and a concern that her 2009 convictions were suggestive that Ms MS had not overcome her drug use or potential addiction. The tribunal has found, on the evidence and in applying the law to the findings of fact, that this is not the case.
All of Ms MS’s witnesses know of her criminal history. All spoke very highly of her and come from a background of professional work with vulnerable people. At no time has it been considered by the organisation’s management that these vulnerable people have been at risk by Ms MS’s employ. On the contrary, it is considered by her management that her own experiences and her insights and understanding have placed her in good stead to work with the various groups supported by the organisation.
Ms MS herself has acknowledged her past life was destructive and adversely affected herself and other people. She is focussed on continuing to establish a new life for herself, drug free and independent of the pattern of abusive relationships of the past.
Ms MS is to be commended for her efforts and for her genuine endeavours to ‘give back’ to vulnerable people.
The decision made on 26 March 2010 to issue a negative notice to Ms MS is set aside and a positive notice is to be issued forthwith to Ms MS.
Reasons for non-publication order
[100]The tribunal is satisfied that the publication of the name of the applicant, the names of the witnesses and referees and the names of the organisations in this decision should be prohibited, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009.
[101]The tribunal is able to act under subsection (1) on the application of a party to the proceeding or on its own initiative. In this case the tribunal proceeded on its own initiative. The Department did not oppose this decision when discussed in the hearing.
[102]The Department was in agreement that a non publication order be made. While Ms MS has been convicted of a series of offences and it could be argued that it is in the public interest for her to be identified, in this case she is supported and works within a confidential environment. The therapeutic community and the support it provides to numerous vulnerable people, including people with a disability and with mental health issues and the homeless deserve prudent exposure. People with a disability themselves access these services on an understanding that their identities remain a private part of the service agreement.
[103]The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public to access details of yellow card matters, the decisions made by the tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur, albeit de-identified.
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