RSC v Director General Department of Justice and Attorney-General

Case •

[2023] QCAT 344

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

RSC v Director General Department of Justice and Attorney-General [2023] QCAT 344

PARTIES:
RSC

(applicant)

v
DIRECTOR GENERAL DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML420-21

MATTER TYPE:

Childrens

DELIVERED ON:

31 August 2023

HEARING DATE:

6 December 2022

HEARD AT:

Brisbane

DECISION OF:

Member Davies

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is ‘exceptional’ within the meaning of s 221(2) 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

2. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:

(a)     the contents of a document or thing filed in or produced to the Tribunal.

(b)     evidence given before the Tribunal; and

(c)     any order made, or reasons given by the Tribunal is prohibited to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or non-party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – application for review of decision to issue negative notice – where applicant has convictions and charges – where the offences were not serious or disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether this is an exceptional case in which it would not be in the best interests of children for the applicant to be given a working with children clearance

Human Rights Act 2019 (Qld), s 25, s 26, s 31, s 38
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 172, s 221, s 226, s 353, s 360

Briginshaw v Briginshaw (1938) 60 CLR 336

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 and Child Guardian v Storrs [2011] QCATA 28

DAN v Director General, Department of Justice and Attorney-General [2021] QCAT 229

Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6

ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

R Johnson, Legal Officer, Department of Justice and Attorney-Generally

REASONS FOR DECISION

Introduction

  1. The Applicant (RSC) was issued with a working with children exemption (also referred to as a Blue Card) in May 2017. That exemption was issued under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act).

  2. In 2021 the Respondent (Blue Card Services) was advised that RSC’s police information had changed. The change in the police information arose from the execution, by members of the Queensland Police Service, of a search warrant at RSC’s residence in March 2021. As a result of the police search, RSC was charged with several drug related offences.

  3. In August 2021 RSC pleaded guilty to and was convicted in the Queensland Magistrates Court of five drug related offences. The convictions included the offences of producing dangerous drugs and possessing dangerous drugs.

  4. After considering the changed police information Blue Card Services proposed to issue RSC with a negative notice. That is, Blue Card Services formed the preliminary view that RSC’s Blue Card should be cancelled. Prior to taking that step, Blue Card Services sought and received submissions from RSC. On 6 December 2021, RSC’s Blue Card Services and issued RSC with a negative notice (the Negative Notice decision).

  5. The basis on which the Negative Notice Decision was issued was that Blue Card Services came to the view that RSC’s case was an exceptional case in which it would not be in the best interests of children for RSC to be issued with a Blue Card.

  6. The Negative Notice Decision is a reviewable decision under the WWC Act.

  7. On 22 December 2021 RSC availed herself of the review process and applied to this Tribunal for a review of the Negative Notice Decision.

Legislative framework and role of Tribunal

  1. The principal legislative enactments relevant to a review by this Tribunal of the Negative Notice Decision are the WWC Act – under which the Negative Notice Decision was made – and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) – under which the Tribunal exercises its review jurisdiction.

  2. The object of the WWC Act is promote and protect the rights, interests, and wellbeing of children and young people in Queensland. It does this by a scheme requiring the development and implementation of risk management strategies and for the screening of persons.[1]

    [1]WWC Act s 5.

  3. The Negative Notice Decision is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act.

  4. The purpose of a review by this Tribunal of the Negative Notice Decision is to produce the correct and preferable decision.[2] In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.[3] That is to say, this Tribunal must come to a decision on the evidence before it.

    [2]QCAT Act s 20(1).

    [3]QCAT Act s 20(2).

  5. Further, in deciding this matter, this Tribunal has all the functions of the original decision maker. In exercising the functions of the original decision maker, this Tribunal is, like the original decision maker, guided by the principles set out in the WWC Act.

  6. Those principles are, in summary, that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[4]

    [4]WWC Act ss 6 and 360.

  7. The WWC Act provides, as a starting point, that a person in the position of the RSC, should be allowed to hold a blue card unless that person’s situation is an exceptional case.

  8. Thus, in conducting this review of the Negative Notice Decision, the principal issue for determination is whether an exceptional case exists. That is, whether RSC’s situation is such that it would not be in the best of children for a positive notice to be issued.[5]

    [5]WWC Act s 221(2).

  9. The term ‘exceptional case’ is not specifically defined in the WWC Act. As to what constitutes an exceptional case is a question of fact and degree having regard to the intent and purpose of the legislation. Further, it is a term of common use in everyday language and the application of the concept of what constitutes an exceptional case should be unhampered by any special meaning or interpretation.[6]

    [6]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] – [35].

  10. In determining whether the Applicant’s circumstances constitute an exceptional case it is necessary to consider:

    (a)The principles for the administration of the WWC Act discussed above.

    (b)The matters that the WWC Act mandates must be considered. Relevantly, these matters are set out in s 226(2) of the WWC Act (the s 226 matters).

    (c)A human right relevant to the decision.

    (d)Any other matters that are relevant to the decision.[7]

    [7]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42].

  11. A determination of whether an exceptional case exists can only be made after evaluating all the available evidence.[8] In this context it can be observed that there was evidence before the Tribunal that was not before Blue Card Services at the time that the Negative Notice Decision was made.

    [8]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].

  12. To the extent that it is necessary to make findings in relation to past conduct, the Tribunal might consider evidential principles and take into account the considerations outlined in Briginshaw.[9]

    [9]This proposition is set out in the Appeal Tribunal decision of Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [16]. The reference to Briginshaw is to the High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336.

  13. In relation to human rights relevant to the decision, the Tribunal is a ‘public entity’ and is therefore required to comply with s 58 of the Human Rights Act 2019 (Qld) (HRA). Subject to some presently irrelevant exceptions, that section prohibits a public entity from making a decision that is not compatible with human rights or without considering human rights that are relevant to the decision. The human rights that are relevant to RSC include the right to privacy and reputation[10] and the right to a fair hearing.[11]  The human rights of children are also relevant to this review. Those rights relevantly are that every child has the right to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’ as provided for in s 26(2) of the HRA.

    [10]HRA s 25.

    [11]HRA s 31.

Evidence

  1. RSC’s evidence in support of her application consisted of four statements by her.[12] Two of these statements had annexures. The annexures included character references, documents produced in relation to RSC’s criminal charges and convictions and other documents considered relevant by her. Although the character references in RSC’s evidence were positive in support of her, with two exceptions mentioned below, they were not called as witnesses and thus were not able to be examined on their statements. As a result, I only accord limited weight to the evidence of those witnesses who were not called to give evidence.

    [12]Exhibits 5 – 8 inclusive.

  2. RSC also gave oral evidence at the hearing and, in January 2023, provided written submissions. In addition, oral evidence was also given, at the hearing, by the authors of two of RSC’s character references. The first of these witnesses was a representative of her current employer. The second witness was secondary school teacher who has supervised RSC whilst she was employed as a teacher. That is, both of these witnesses have been closely involved with RSC in her work and professional life. Both witnesses stated that they had knowledge of the charges and convictions that gave rise to the Negative Notice Decision. These witnesses presented as largely disinterested and dispassionate.

  3. Blue Card Services put before the Tribunal two sets of documents[13] together with written submissions delivered after the hearing. The first of these was the document that set out the Negative Notice Decision. That is, the ‘Reasons’ document together with accompanying material. This bundle of documents contained details of RSC’s criminal history, police reports in relation to RSC’s offending and transcripts of sentencing remarks. The second set of documents was a collection of material produced pursuant to notices – including a video from a police body worn camera recorded during the execution of the search warrant.

    [13]Documents in this context includes material stored on a disc or other device that is capable of being of being reproduced.

Discussion

  1. As an introduction to a discussion and evaluation of the evidence before the Tribunal it should be emphasised that, to address the question of whether RSC’s case is exceptional, it is important to appreciate that the ultimate question (i.e. of what is in the best interests of children) does not lend itself to exact proof. Addressing this ultimate question involves a ‘consideration of how children might be affected and a degree of speculation as to what might happen in the future and of potential future risks to children.’[14]

    [14]Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6 [16].

  2. With this as background consideration can now be given to the matters set out in paragraphs [17] – [20] above.

The s 226 matters

  1. The WWC Act, in s 266(2), sets out matters that this Tribunal must have regard to in deciding whether there is an exceptional case where the person in question has been the subject of a conviction or charge.

  2. It is not in dispute that RSC was charged and convicted with five drug related offences.[15] It is also not in dispute that RSC was charged with the offence with permitting use of a place. In respect of this last-mentioned charge, the prosecution offered no evidence and RSC was discharged.

    [15]Producing dangerous drugs, possessing dangerous drugs, possess utensils or pipes etc that had been used, possess property suspected of having been used in connection with the commission of a drug offence and possessing anything used in the commission of a crime.

  3. The offences with which RSC has been charged and convicted are neither serious nor disqualifying offences as those terms are defined in the WWC Act.

  4. In relation to the relevant s 226 matters, the sentencing remarks of the Magistrate are relevant. In the course of sentencing RSC in August 2021 the Magistrate made the following remarks:

    I know that you have no previous history before the Court. I accept that you were using cannabis by way of self-medicating, and that there was no commercial use of that, and it is not suggested by the prosecution that it was. I accept that you are community minded, which – as your solicitor says and that you are held in high regard by those with whom we work.

    In all of the circumstances, I also note, I should say, that you have now obtained medical assistance in order to use cannabis legally. In all of the circumstances, I impose one fine on you for all the charges, that is, $800. … … In relation to the recording of the conviction, it is the first time, and that you are before the court. A conviction will likely impact your capacity for future employment, and so I do not record that today.

  5. As is apparent, RSC was convicted of the charges but that no conviction was recorded and that she was fined $800.

  6. Blue Card Services properly submit that in relation to the charge of permitting use of a place, although RSC was discharged, that discharge does not mean that there is no elevation of risk to the welfare and best interests of children. The bringing of the charge is a factor that can and must be taken into account when evaluating the best interests of children to be protected.

  7. In respect of RSC’s criminal history, it is appropriate to emphasise that the charges and convictions are all in respect of related drug offences and arise out of the one event – the execution of the search warrant in March 2021.

  8. The circumstances relating to the commission of the offences are relevant to the assessment of whether RSC’s case is exceptional.[16]

    [16]A mandatory consideration under s 226(2)(f) of the WWC Act.

  9. Blue Card Services submit that RSC’s possession and use of cannabis in a home that she shared with children and young adults reflects adversely on her ability to work with children.

  10. In this context, Blue Card Services emphasise the circumstances that gave rise to the charges and convictions and submit that RSC had an indifferent attitude to the production and use of cannabis. In support of that proposition Blue Card Services highlight RSC’s conduct during the execution of the search warrant at her home   and RSC’s own evidence was that she first tried cannabis when she was 16 years old and that she had used it at various times throughout her life.[17]  

    [17]Exhibit 7, page 6.

  11. In her oral evidence RSC said that her use of cannabis was not in the presence of her children or young adults that she resides with. Further, in both her oral and written statements, RSC reiterated a matter that had been accepted by the sentencing Magistrate – that RSC’s use of cannabis was by way of self-medicating and that she had, prior to conviction, obtained medical assistance to use cannabis legally. On this last point, RSC’s written evidence provided support for this contention as it included a document dated 17 August 2021 entitled ‘Confirmation of Medicinal Cannabis Use’ issued by CA Clinics.

  12. Nonetheless the totality of the evidence leaves no doubt that, at the time that she was charged, RSC was aware that the possession and use of cannabis, without medical sanction, was illegal in Queensland and that this had been the case from when she first used cannabis when she was a teenager.

  13. It is no doubt the position that a disregard for the law is difficult to reconcile with fulfillment of an obligation to protect from harm and promote the wellbeing of children. Further, as has been stated in other Tribunal decisions the use of cannabis or TCH is generally regarded as unacceptable where the care of children is concerned.[18] This is a factor that weighs heavily in a consideration of whether RSC’s case is exceptional.

    [18]See DAN v Director General, Department of Justice and Attorney-General [2021] QCAT 229, [211] and ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102, [100].

Other matters

  1. Other matters relevant to a decision of whether or not RSC’s case is exceptional and highlighted by Blue Card Services in its submissions included concerns raised by the notice to produce material, whether RSC has addressed the risk factors and triggers to her drug use, her insights into the impact of her offending, her normalisation of drug use and concerns about RSC’s compliance with her obligations under the WWC Act since the Negative Notice Decision. Broadly described these are all matters associated with RSC’s use of cannabis.

  2. The factors that RSC contends are relevant to a consideration of whether or not her case is exceptional, and which show, in her submission, that her case is not exceptional, consist of four major matters.

  3. The first of these is that RSC says she is suffering financial hardship because of the Negative Notice Decision. RSC contends that she is in effect being punished twice, initially by the Court for and then by the Negative Notice Decision. RSC’s evidence is that she had to close her student tutoring business and forgo the income from that business because of the Negative Notice Decision.

  4. Although it can be appreciated that this is a significant matter for RSC, it is not a relevant factor for this Tribunal. As submitted by Blue Card Services, this is a protective jurisdiction and so any adverse impact on by RSC is not a factor that this Tribunal is obliged or entitled to take into account.[19]

    [19]In support of this proposition Blue Card Services referred to the decision of Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASC 171, Buss JA at [109]. That decision has been consistently cited and applied in QCAT Blue Card proceedings.

  5. The second matter, although related to the first matter in that it stems from RSC’s tutoring business, is slightly different. RSC’s evidence is that a focus of her tutoring business was helping disadvantaged students. RSC said that through the support of donations and discounted fees she had been assisting disadvantaged students who would otherwise find it difficult to afford her tuition fees.

  6. I accept RSC’s evidence that she has been assisting disadvantaged students and that she has the appropriate qualifications and experience to provide that assistance.

  7. The third matter raised by RSC is that she has retained her registration as a teacher despite her criminal history. The evidence before the Tribunal shows that the Queensland College of Teachers had concerns regarding RSC’s suitability to retain her teaching registration because of her criminal convictions. To allay those concerns, RSC has entered into a practice and conduct agreement with the Queensland College of Teachers. This agreement, as its name suggests, imposes certain obligations on RSC. This agreement is a requirement for RSC’s continuing registration as a teacher.

  1. Whilst registration as a teacher in Queensland and holding of a Blue Card are independent matters, it is RSC’s contention that her registration as a teacher allows her to have close interaction with children.

  2. The fourth matter raised by RSC is her domestic arrangements. At the time of the hearing in this matter RSC’s evidence was that her four biological children (two of whom are now adults) and a young female who was, at the time, close to attaining her majority, resided with her. RSC is proud of the parenting that she, as a single parent, has provided to her children and, in her evidence, highlights their academic and workplace participation accomplishments. In addition, RSC’s evidence is that she has opened her house to teenagers who have needed support and that she feels very strongly about supporting children that are facing difficult circumstances.

  3. In addition to the above matters, RSC emphasised her own employment and academic qualifications. Of particular note in this regard is that, in addition to her teaching experience of about seven years, RSC has also been a university tutor for a total of about seven or eight years. RSC contends that her academic qualifications and experience and her employment record, whilst raising a family as a single mother, are also evidence that she has qualities that are positive and would assist her in her future interaction with children – other than as a teacher.

  4. RSC further points to these matters as highlighting that her use has of cannabis has not resulted in maladaptive behaviour or psychological changes. RSC also puts emphasis on the counselling sessions that she undertook in 2021.

  5. One other matter raised by Blue Card Services, and which arose out of the evidence before the Tribunal, is whether or not RSC, after the suspension of her blue card, continued her tutorial business contrary to the provisions of the WWC Act.[20]

    [20]If the usual activities of a business include teaching, coaching or tutoring of a child it is a regulated business – WWC Act, Schedule 1, Part 2, s 17.

  6. One of RSC’s witnesses, a representative of her current employer, evidence raised the possibility that RSC had tutored his child after her blue card had been suspended. RSC’s evidence is that this was not the case and that she had abided with the terms of her suspension. My assessment of the evidence is that the recollection of this witness of the events in question were vague as to the timing of the events and not sufficient for me to conclude that RSC had failed to comply with the terms of her suspension.

Conclusion

  1. The guiding principle for a decision as to whether RSC’s case is exceptional is the welfare and best interests of a child are paramount. This paramount principle supports a precautionary approach to a consideration of RSC’s case.

  2. Nonetheless, after evaluating the evidence before the Tribunal, I have come to the view that RSC’s case is not exceptional.

  3. The basis on which I have come to this decision is that although there are aspects of RSC’s position that are of some concern, her offences are not serious offences and these matters do not make her case exceptional.

Non-publication order

  1. The Tribunal has the power to make an order prohibiting the publication of certain information including information that may enable a person to be identified. A non-publication order may be made if the Tribunal considers that such an order is necessary in the interests of justice.[21] I consider that such an order is appropriate here as identification of RSC could lead to the identification of her children, including a child who is a minor.

    [21]QCAT Act, s 66.


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