OSL v Director-General, Department of Justice and Attorney-General
[2023] QCAT 266
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | OSL v Director-General, Department of Justice and Attorney-General [2023] QCAT 266 | ||
PARTIES: |
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APPLICATION NO/S: | CML101-22 | ||
MATTER TYPE: | General administrative review matters | ||
DELIVERED ON: | 30 June 2023 | ||
HEARING DATE: | 27 February 2023 | ||
HEARD AT: | Brisbane | ||
DECISION OF: | Member Matthews | ||
ORDERS: | That the decision of the Director General, Department of Justice and Attorney General that OSL’s case is exceptional within the meaning of s 221(2) of the Working with Children (risk management and Screening) Act 2000 (Qld) is confirmed. | ||
CATCHWORDS: | CHILD WELFARE – APPLICATION FOR REMOVAL OF NEGATIVE NOTICE – IS THE CASE EXCEPTIONAL – REVIEW OF DECISION OF BLUE CARD SERVICES – whether applicant represents a risk of harm to children – whether protective factors outweigh risk factors – where offences are not serious or disqualifying under the Act Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 20, s 21, s 24 Working with Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 226 (2), s 360 | ||
APPEARANCES & REPRESENTATION: | |||
Applicant: | Self represented | ||
Respondent: | Rebecca Johnson |
REASONS FOR DECISION
Background
The applicant OSL applied for a working with children clearance (‘Blue Card’) on 29 March 2019 pursuant to the Working with Children (Risk Management and Risk Screening) Act 2000 (Qld) (“The Act”) and was issued with a Blue card.
Following the issuing of the blue card, the respondent received notification of a change to the applicants’ police information which resulted in the respondent reassessing OSL’s eligibility to hold a blue card.
OSL was than advised of Blue Card Services’ intention to issue a negative notice, and an opportunity was afforded to OSL to provide written submissions about whether her case is an exceptional case.
After reassessing OSL’s eligibility, Blue card issued OSL with the written notice of decision (negative notice) on 23 February 2022.
OSL filed an application to the Tribunal to review the respondent’s decision on 28 March 2022.
A one day hearing was heard on 27 February 2023.
The law and legislative framework
Pursuant to the QCAT Act, the purpose of the Tribunal in its review jurisdiction is to make the correct and preferable decision by standing in the shoes of the decision maker.[1]
[1]QCAT Act Section 20(1).
This is based on a fresh hearing on the merits[2] and when presented with the evidence, is for the tribunal to determine by weighing the evidence of both parties on a balance of probabilities to reach a final decision having regard to both the WWC and the QCAT Act.
[2]Ibid s 20(2).
Pursuant to section 24 of the QCAT Act, the tribunal may confirm or amend the decision under review; set aside the decision and substitute its own decision and return the matter to for reconsideration to the decision maker with any necessary directions the tribunal considers appropriate.
The paramount principle when considering and determining child related employment decisions is the welfare and best interests of children which is a paramount[3] consideration “to which all others yield.”[4]
[3]s 360 WWC Act.
[4]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
OSL throughout the hearing submits that if not reissued a blue card this would adversely affect and impact her ability to complete practical course requirements of her nursing degree and her ability to return to work with after school programs.
The regime of the Act is to ensure protective scaffolding is placed around employment criteria for all people who wish to work with and or around children, and therefore, any hardship or prejudice the applicant may suffer if not successful in obtaining a blue card is of no relevance.[5]
[5]Grindrod v Chief Executive Officer, Department for Community Development [2008] WASCA 289 at [109]
Background
OSL was charged and convicted of the offence of fraud – dishonestly obtains property from another on 11 October 2021.
The offending was said to have occurred between 30 October 2020 and 6 November 2020.
OSL was sentenced to six months of imprisonment, suspended for two years, and was ordered to pay restitution in the amount of $19,000.00 with a conviction recorded.
Whilst this offence is neither a serious offence, nor disqualifying offence under the Act[6] it is clear that legislative intention is that all offences on a person’s criminal history should be considered when determining eligibility to work with Children.[7]
[6]Schedule 2 and 4.
[7]Explanatory notes to the Commissioner for Children and Young People Bill 2000 at page 11.
The offence took place during the course of OSL’s employment as a disability support worker where the complainant was a quadriplegic and has since passed.
The police brief indicated that the complainants brother following the complainant’s death noticed multiple transactions from the complainants’ bank accounts when the complainant was physically unable to perform such transactions due to hospital admissions and following his death.
Those transactions namely, 4 on 30 October 2020 totalling $16,000.00 which was when the complainant was transferred to the hospital after being found unresponsive at home, and 1 transfer on 6 November 2020 totalling $3000.00, after his death were all transferred to OSL’s accounts.
During those times, OSL provided in home support to the complainant which is how they able to dishonestly obtain the bank details to affect the transfers.
During her interview with Police, OSL alleged that the money was received from the complainant for her 21st Birthday, which occurred after his death, and initially denied any knowledge of 5 Transactions totalling $19,000.00 which turned out to be untrue.
OSL described having a close relationship with the complainant who she cared for since May 2020, and is deeply remorseful and regretful, and acknowledges that it was greedy, selfish, and brought about by desperation and her mental health.
The respondent submits, that the offending was more, premeditated, and dishonest conduct to the detriment of her client who required extensive care.
Additionally, the applicant chose to defraud an extremely vulnerable person during her employment which suggests that the applicant is unable to conduct herself in an ethical and controlled manner which raises serious concerns regarding her capacity to safeguard the best interests of children who would be inherently vulnerable if in her care.
Filed proceeding materials.
OSL:
OSL filed and relied upon the following;
(a)A life story dated 20 April 2022;
(b)National criminal history check dated 20 April 2022; and nationally coordinated criminal history check certificate dated 12 July 2021;
(c)Letter from EL to the applicant dated 20 April 2022;
(d)Academic transcript dated 29 April 2021; and
(e)Medical certification from Dr Z dated 7 October 2021.
The applicant did not file any witness statements, nor chose to call any witnesses during her hearing. The tribunal afforded her an opportunity to reconsider and contact her family, support networks and expert witnesses but the applicant declined.
Respondent BCS:
The respondent relied primarily upon two bundles of documents marked BCS 1-74 and NTP 1-514.
The bundle of documents marked BCS included the reasons and applicants’ responses, Criminal history of the applicant, and information provided by the Department of Seniors, Disability services and Aboriginal and Torres Strait Island Partnership.
The bundle of documents labelled NTP included materials produced to the Tribunal by Metro North and Health service and ACU medical centre.
Additionally, both parties relied upon written and oral submissions provided throughout the hearing and thereafter.
The reviewable decision
The decision under review is whether the applicant’s case is an “exceptional case.”
Given the applicant has been convicted of an offence, the Tribunal must have regard to the prescribed considerations set out in the Act when determining whether an exceptional case exists.[8]
[8]s 226 (2) WWC Act.
The term exceptional case is not defined under the WWC Act but is rather a question of fact and degree to be decided incrementally on a case by case basis underpinned by the legislative framework where neither party bears the onus of proof in determining whether an exceptional case exists.
When considering whether an exceptional case exists, consideration was given to the paramount principle, the mandatory factors set out in sections 226 (2) of the Act which is not an exhaustive list, but rather they “merely contain particular matters which the tribunal is obliged to consider in deciding the application.[9]”
[9]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Further, application of the Human Rights considerations, namely, as a public entity, it is unlawful for the Tribunal (public entity):
(a)to act to make a decision in a way that is not compatible with Human Rights; or
(b)in making a decision, fail to give proper consideration to a human right relevant to the decision, in these circumstances, section 26 (2) specifically the right of every child to “the protection that is needed by a child, and is in the child’s best interests, because of being a child.”
In reaching this decision, I have considered all the relevant factors under the Act, and other relevant information on hand to determining if this is an exceptional case.
I have considered the Human Rights Act, and where and if limitations occur, the tribunal is satisfied that they are reasonable and justified by the Human Rights Act.[10]
[10]Human Rights Act 2019 (Qld), s 8.
Further, the tribunal is fully aware of the transferability of the blue card and consideration was given accordingly in this regard when reaching this decision, that OSL would have unfettered access to children and would be allowed to work unsupervised with and around children without restriction if reissued a blue card.
Oral Testimony of OSL
Regarding the contents of her evidence, they were true and correct, and that there were no changes to her life story.
Between 2017 and 2019 she held a volunteer blue card and was issued a work blue card in 2019 before it was cancelled in March 2022.
Between 2020 to 2022 she worked with several organisations associated with children including Edmond Rice Camps, ACU, PCYC, McDowall state school and the Netball club, but has since stepped down from that role.
OSL states that following her offending she has worked tirelessly to be a better person and is regretful for her actions, and in hindsight should have known better.
When questioned about her police interview and the discrepancies, OSL stated that she initially denied the offences, but could not recall to much of the interview, nor what she said.
OSL states that she started to struggle with her mental health in 2020 following the death of a family member and friend in a car crash which occurred a few months before the offending and was diagnosed with Atypical Anorexia and Bipolar disorder in 2021.
When reflecting upon the offending OSL states that at the time she was desperate, experiencing grief and sadness, but the offending was more motivated by desperation, greed, and financial difficulties.
When questioned about what the impacts of her offending may have been on others, OSL was vague and provided no insight. She stated that it was selfish, she is remorseful, and that she took from someone who could not defend themselves and that she wishes she may have been more [sic] in her head to be aware it was wrong, but she was not recognisant of her behaviour at the time.
She acknowledged that she took advantage of a vulnerable person and should have known better.
OSL considers her mental state was a contributing factor, and that even when struggling with mental health it would still be appropriate for her to work with children as it assists to deal with her mental health.
Prior to the offending OSL was receiving treatment for her mental health but acknowledged it was probably not enough, but she did her best. Her last confirmed admission to hospital was April 2022.
She states that her biggest advocate is her GP, who she sees monthly, or when she can get an appointment.
At the time of the offending, she was taking medication, but it was not working due to her struggles with anorexia.
OSL acknowledged that in the past she has struggled with suicidal thoughts which have on occasion led to hospital admissions and an attempt in November 2021.
When questioned about her medical history she on occasion disagreed with the progress notes but acknowledged some occasions of binge drinking, and non-medication compliance which on one occasion led to a pharmaceutical overdose.
When addressing her appointment summaries, with Psychologist MA, OSL states she was regular but for when cancellations by MA occurred, or work commitments arose. This was contrary to the summary list document though which showed that there were significant cancellations with both MA and other professionals during the 2021-2023 period equating to approximately 35 percent cancellations in each given year.
When questioned about supports, OSL states she leans on her GP if her psychologist is not available.
She is currently residing with her sister, which she states sometimes causes her stress, but most of the time it is okay, and to navigate and mitigate the stress she goes for a run, to the gym or just leaves the house, and her mental health is very well currently.
OSL considers that she can assess situations well, is holding down a job, and is eating more than 500 calories a day due to her active recovery from anorexia.
When asked why she does not have support at the hearing, nor provided any character references, it was stated due to not wanting to involve others, as “I am a go alone person” and those she considers her support network are not aware of what has happened, as “they wouldn’t be my friends if they were aware.”
She considers herself very community minded and prior to the cancellation of her blue card, she had volunteered with many organisations including with children and has won numerous awards for her community services.
She has considerable experience working with children due to her volunteering with no incident, and following her offending is working and handling money.
The tribunal considers the following as pertinent to the matter when considering all the evidence before it:
(a)OSL has not demonstrated any real insight into her offending behaviours and the harm it causes others.
(b)OSL has not continuing seeking ongoing consistent professional help.
(c)Whilst OSL may have attended upon counselling in the past this ended in 2022, where it was cited, that OSL was inconsistent with attendances, passive engagement and had difficulty identifying goals and initiating change.
(d)The above raised concern for the Tribunal regarding OSL’s commitment to implementing strategies to prevent recurrences of like behaviours and offending if stressed and struggling with her on going mental health issues.
(e)OSL failed to demonstrate to the tribunal her insight into the harm caused. OSL considers that given her offending was not in relation to children, it is not exceptional. She failed to convince the Tribunal that she properly understood the concerns held by Blue Card Services, the nature of her offending and the seriousness of her dishonesty when working with vulnerable persons.
(f)Whilst OSL contended in her written submissions that she has a strong stable network in place, this is contrary to the oral testimony OSL provided throughout the hearing and emphasised by the fact, she attended the hearing alone, and had not spoken to friends about her ongoing review application.
(g)OSL has not spoken nor disclosed her offending to her friends. It was OSL’s testimony that if she told them, “they would not be her friends anymore,” which indicates to the tribunal that OSL, if struggling again, could be isolated and without support.
(h)By not continuing to receive professional support, be open and honest with her support network of friends, OSL has not demonstrated to the tribunal that she has mitigated the risks associated with her mental health, her past offending or has properly addressed the stressors leading to her offending.
OSL has not satisfied the tribunal that she has properly managed her mental health. The tribunal agrees with the respondent that whilst this is not a barrier to holding a blue card, there is no evidence before the tribunal that the concerning past behaviours leading to the offending have been mitigated, nor any expert evidence to negate the risk of that repetition, nor any evidence to show that the applicant has the ability or skills to cope with stressful situations should they occur again.
The tribunal whilst acknowledging that OSL has community spirit, and a strong link to many volunteering organisations, and schools in the past, this is not enough to mitigate the risks as outlined above.
OSL failed to satisfy the tribunal that if in the care of children, she would be able to provide a safe and protective environment, nor promote and protect the best interests of children.
Therefore, I am not satisfied that OSL at this time has demonstrated that if she were to work with children that there would be little or no likelihood of risk to children.
The tribunal acknowledges that OSL has worked with children and commends her dedication to volunteering, however, without any expert evidence to demonstrate strategies learnt to deal with stressors in her life, triggers and without on going commitment to treatment the tribunal agrees with the position of the respondent that OSL would present a risk if working with children.
Orders
That the decision of the Director-General, Department of Justice and
Attorney-General that OSL’s case is exceptional within the meaning of s 221(2) of the Working with Children (risk management and Screening) Act 2000 (Qld) is confirmed.
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