SBM v Director-General, Department of Justice and Attorney-General

[2023] QCAT 306

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

SBM v Director-General, Department of Justice and Attorney-General [2023] QCAT 306

PARTIES:

SBM

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML428-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

18 July 2023

HEARING DATE:

23 March 2023

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 not “exceptional” within the meaning of s 225 of the Working with Children (Risk Management and Screening] Act 2000 (Qld) is confirmed

2.     The publication of the names of the Applicant, any witnesses and the names of any third parties referred to in the filed material and at the hearing is prohibited.

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 the applicant has been convicted of a serious offence, and other offences - implications under the Working with Children (Risk Management and Screening) Act 2000 (Qld) of those convictions – whether this is an exceptional case in which it would not harm the best interests of children for the applicant to be given a working with children clearance

Human Rights Act 2019 (Qld), s 23, s 25, s 26
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 221, s 225, s 226, s 353, s 360
Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	C A Davis, Solicitor, Department of Justice and Attorney General

REASONS FOR DECISION

Introduction

1. The Applicant SBM is a person in his late twenties. He was issued with a positive notice and a Blue Card by the Respondent (Blue Card Services) in February 2013. However, in 2014 Blue Card Services was notified by the Queensland Police Service that his police information had changed. As a result, SBM’s eligibility to hold a Blue Card was reassessed by Blue Card Services and, in August 2014, he was issued with a negative notice. The effect of the issue of a negative notice is that SBM’s Blue Card was cancelled. In 2015 SBM was convicted of several drug related offences including trafficking in dangerous drugs. In June 2020 SBM applied to Blue Card Services for a cancellation of the negative notice issued to him.

2. After considering SBM’s application to cancel the negative notice, Blue Card Services, on 16 September 2020, wrote a letter to SBM and advised him that his application to cancel the negative notice was unsuccessful. The Blue Card Services letter was accompanied by an eight page ‘Reasons’ document, also dated 16 September 2020.[1] That Reasons document set out Blue Card Service’s reasons for refusing to cancel the negative notice. In summary, the decision maker came to the view that SBM’s case was not ‘exceptional’ and that it would not be in the best interests of children for SBM negative notice to be cancelled.

   [1]The Reasons document is in Exhibit 1 at pp 9 – 20.

3. By an application dated 16 October 2020 SBM seeks a review of the Blue Card Services decision of 16 September 2020 (the Decision).

4. The decisive issue for determination is whether, on the material now before the Tribunal, SBM’s case is exceptional.

Legislative framework and role of Tribunal

1. The principal legislation, relevant to a review by this Tribunal of the Decision are the Working with Children (Risk Management and Screening) Act 2000 (WWC Act) – under which the Decision of 16 September 2020 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.[2]

   [2]WWC Act s 5.

3. The Decision is a reviewable decision under the WWC Act. Specifically, it 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 Decision is to produce the correct and preferable decision.[3] In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.[4]

   [3]QCAT Act s 20(1).

   [4]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, as was 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.

7. In evaluating the evidence and coming to a determination of what is in the best interest of children, it is important to appreciate that this is something that does not lend itself to exact proof. As was stated by the Appeal Tribunal in Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, a determination of the ultimate question of what is in the best interests of children 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.’[5]

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

8. The WWC Act provides, as a starting point, that a person in the position of SBM, must be issued with a negative notice. This is because he has been convicted of a serious offence – trafficking in dangerous drugs.[6] However, if I am satisfied, on the evidence, before me that SBM’s case is exceptional in which it would not harm the best interests of children for him to be issued with a working with children clearance, then a working with children clearance must issue.[7]  

   [6]WWC Act s 225(1) and Schedule 2 (Trafficking in dangerous drugs).

   [7]WWC Act s 225(2).

9. The term ‘exceptional case’ is not specifically defined in the WWC Act. However, statutory guidance is given when a decision maker is deciding if there is an exceptional case where, as here, there has been a conviction or charge.[8]

   [8]WWC Act s 226.

10. 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 exceptional case should be unhampered by any special meaning or interpretation.[9]  

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

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

    (a)The principles for the administration of the WWC Act mentioned in paragraph [10] above.

    (b)The application of s 225 of the WWC Act – the section which governs deciding an application where an applicant has been convicted of a serious offence.

    (c)The matters that the WWC Act, in s 226(2), mandates that must be considered.

    (d)Any other matters that are relevant to the decision.[10] These matters include, but are not limited to, trigger and risk factors that gave rise to SBM’s offending and other behaviour, his insight into his conduct and protective factors such as SBM’s support network.

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

12. In this context it is important to mention a matter that is not relevant to the decision here. That is any hardship or prejudice to SBM.[11]

    [11]Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142, [52].

13. The Tribunal is required to determine whether an exceptional case exists after evaluating all the available evidence before it.[12] In this matter, there was evidence before the Tribunal that was not before Blue Card Services when the Decision was made.

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

14. In addition, in a review such as this, 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 SBM include his right to privacy and reputation and the right to a fair hearing. 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.

Evidence

1. The evidence of Blue Card Services consisted of two sets of documents. The first set of documents were the documents relevant to the Decision.[13] In addition, Blue Card Services obtained, for the purpose of this hearing, a document pursuant to a Notice to Produce given to Queensland Corrective Services.[14]

   [13]Exhibit 1 (being documents identified as the BSC documents which consisted of 124 pages (BCS 1 – 124).

   [14]Exhibit 2 (being a document identified as the NTP document which consists of 45 pages (NTP 1 – 45).

2. The documentary evidence of SBM consisted of a statement of evidence by him[15] together with his resume,[16] a petition in support of SBM[17] and correspondence by SBM to representatives of Blue Card Services.[18]

   [15]Exhibit 3.

   [16]Exhibit 7.

   [17]Exhibit 4.

   [18]Exhibits 5, 6 and 8.

3. SBM’s statement of evidence incorporated several annexures. Two of those annexures were statements or references by his parents.[19] SBM and his parents gave oral evidence and were the subject of questioning by the representative of Blue Card Services.

   [19]Exhibits 9 and 10.

4. Other annexures to SBM’s statement of evidence consisted of statements or references supporting SBM. Other than his parents, the authors of those statements or references did not give oral evidence (and thus could not be questioned). Evidence that fell into this category included a Confidential Statement and Standard Report by a clinical psychologist who had engaged with SBM for 19 sessions over a period of about 9 months in 2020 and 2021.

Is SBM’s case exceptional?

s 226 matters

1. In assessing the evidence and specifically addressing the question of whether SBM’s case is exceptional it is appropriate to turn first to the matters that the WWC Act, in s 226(2), mandates that the Tribunal have regard when deciding if an exceptional case exists. Those matters (the s 226 matters) are, in summary:

   (a)Whether the offences are convictions or charges

   (b)Whether the offences are serious or disqualifying offence

   (c)When the offences were committed

   (d)The nature of the offences and their relevance to employment or carrying on a business that involves or may involve children

   (e)In the case of a conviction – the penalty imposed by the court

2. The ‘National Police Check Results Report’[20] shows that SBM has come before the (Queensland) District Court in Townsville on two occasions. Firstly, on 4 September 2014 at which time a Nolle Prosequi was entered on drug related charges. The second appearance was on 13 October 2015. On this second occasion SBM pleaded guilty to and was convicted of, a number of drug related offences including two summary offences that were heard by the District Court. The offences to which SBM pleaded guilty were trafficking dangerous drugs, possessing a dangerous drug, supplying dangerous drugs and two offences in respect of possession drug paraphernalia.

   [20]Exhibit 1 (the BCS documents) at BCS 25 and 26.

3. The offence of trafficking in dangerous drugs is categorised as a ‘serious offence’ under the WWC Act. Hence, the relevance of s 225 of the Act in deciding this matter.

4. SBM’s offences were committed between July 2013 and April 2014. Convictions were recorded in respect of each offence and a Serious Drug Offence Certificate was issued. The penalties imposed by the District Court included wholly suspended (concurrent) terms of imprisonment and probation. The judge’s reasons for the sentencing decisions were in evidence. The sentencing judge considered suspending the prison terms imposed would allow SBM to access appropriate support and as an incentive to not further offend. Time has proved the judge’s decision to be correct.

5. Blue Card services submit that SBM’s offending is relevant to working with children for three principal reasons.

6. Firstly, that by designating an offence as serious, the legislative intent is to clearly indicate that such a conviction is relevant to employment or carrying on a business that involves children. In this regard, it is also submitted that an aggravating feature of SBM’s offending is that he was a blue card holder throughout his offending.

7. Secondly, that SBM’s convictions, when taken with other evidence before the Tribunal indicates that he has a lack of respect for the law, raises questions about the extent of his illicit drug use and his ability to provide a protective environment for children.

8. Thirdly that SBM’s behaviour raises questions about his ability to judge appropriate behaviour.

9. In his statement of evidence and in his oral evidence SBM frankly acknowledges the seriousness of his offending. However, he contends that his criminal conduct is now some distance in the past as is the milieu that gave rise to his offending. Further, that he has undertaken courses to assist his personal development and that he has, through self-rehabilitation broken free from drug dependence. In addition to these matters, SBM says that he has now in place a strong support network. A network that includes his parents, both of whom provided statements and gave oral evidence on his behalf, and a stable domestic relationship.

10. In addition to these matters, SBM contends that his lived experience would be a positive in relation to employment or carrying on business that involves children as he would bring to any role an insight into how a young person can be badly affected by drug misuse.

Other relevant matters

1. Risk and trigger factors together with SBM’s conduct both pre- and post-conviction and his physical and mental health were a focus of the evidence and the submissions in relation to other relevant matters.

2. A consideration of other matters relevant to the decision must, as with SBM’s offending, be considered in the light of the need to give paramount consideration to the welfare and best interests of a child.

Discussion

1. In considering whether an exceptional case exists, the passage of time since the offending as well as the applicant’s conduct in that time is relevant.

2. SBM’s highlights the time has elapsed since his offending. It is now almost ten years since the conduct that gave rise to his convictions. He points to his quite different circumstances now as compared to the time of his offending emphasising his further study and courses undertaken and enhanced support networks. There is no doubt that SBM is much more mature and not only in terms of years, than when he committed the offences that led to his convictions.

3. By way of response, Blue Card Services submit that the evidence only goes as far as establishing that SBM is living in a law-abiding manner as society expects and functioning at the level expects as a person at his age and stage in life.[21] As a result it was contended by Blue Card Services that concerns remained about SBM’s mental health and to manage his trigger and risk factors.

   [21]Citing in support to this proposition the Tribunal Appeal decision in Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 [47].

4. In relation to his mental health, SBM tendered a confidential statement and standard report by a clinical psychologist who he had consulted for 19 sessions over a period of nine months in 2020 and 2021.[22]

   [22]The report is Annexure 5 to Exhibit 3 – SBM’s statement of evidence.

5. Although this report was generally positive for SBM the author of that report did not give oral evidence and thus could not be questioned about the contents of the report. Including apparent inconsistencies with other evidence highlighted by Blue Card Services’ submissions.[23] This is particularly problematic in view of a number of events in SBM’s life that indicated that he has gone through periods of mental distress. These events occurred at school, at university (both of which were accompanied with drug use), the mental health consequences of an injury to his back and the events that gave rise to his consultations with the psychologist in 2020/2021.

   [23]Exhibit 11 at paragraphs 84 – 101.

Conclusion

1. Ultimately my determination is a matter of discretion having regard to all matters relevant to this decision.[24] Having considered the material put before the Tribunal by the parties, I am not satisfied that SBM’s case is exceptional. I have come to this view in the context of the need for me to give paramount consideration to welfare and best interests of a children and on the basis of the statutory requirement for deciding an application such as this under s 225 of the WWC Act.

   [24]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [16].

2. I am not satisfied that SBM’s post offending conduct is such as to make his situation exceptional. Whilst acknowledging that SBM has made admirable efforts in turning his life around from the time of his convictions, I accept the submission of Blue Card Services that SBM’s conduct only establishes that SBM is living in a law-abiding manner as society expects and functioning at the level expects as a person at his age and stage in life.

3. Further, I am not satisfied, on the evidence before me, that the trigger and risk factors that gave rise to SBM’s offending have been adequately addressed. Despite the psychological assistance that he has received, I am not satisfied that the factors that caused SBM to be referred, by his GP to a psychologist, such as severe levels of depression, anxiety and stress[25] have been adequately addressed. SBM’s treating psychologist stated that SBM would benefit from ongoing sessions to continue to make progress. There was no evidence of any ongoing sessions. 

   [25]Set out in Exhibit 3, Annexure 5.

4. Finally, I have evaluated the competing human rights, referred to in paragraph [18] in coming to the decision that SBM’s case is not exceptional.

De-identification order

1. The QCAT Act, in s 66, gives me the discretion to make an order prohibiting the publication of any information that may enable a person, who has appeared before the Tribunal or is affected by a proceeding, to be identified. The prospect of such an order was canvassed with the parties during the hearing. Having considered the matter and having regard to the potential consequences for SBM, his parents and his treating psychologist of being identified, I consider a de-identification order is appropriate in the public interest.