Stalley v Department of Communities (Disability Services)

[2010] QCAT 357

CITATION: Stalley v Department of Communities (Disability Services) [2010] QCAT 357

PARTIES:	Michelle Stalley
v
Department of Communities (Disability Services)

APPLICATION NUMBER:   GAR127-10  

MATTER TYPE: General administrative review matters

HEARING DATE:     8 June 2010

HEARD AT:  Brisbane

DECISION OF: P McGrath

DELIVERED ON: 27 July 2010

DELIVERED AT:      Brisbane

ORDERS MADE: That the decision of the Department of Communities (Disability Services) of 26 March 2010 to issue a negative notice to Michelle Stalley is set aside and that a positive notice be issued forthwith to Michelle Stalley.

CATCHWORDS :  Administrative Law – Review - Grounds of Review. Disability Services Act 2006 ss.83,85

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Michelle Stalley appeared in person.
RESPONDENT:	Department of Communities represented by Julieann Cork and Brooke Kruger.

REASONS FOR DECISION

1. Michelle is currently 45 years of age.  The Department of Communities (Disability Services), hereafter called the Department, received an application for criminal history screening (prescribed notice) for Michelle on or about 18 August 2009.  At the time of the application for criminal history (prescribed notice) screening was received by the Department, Michelle was engaged by Micah Project Incorporated.

1. On or about 14 December 2009, Queensland Police Service Information Centre advised the Department that Michelle had been convicted of a large number of offences, in particular, drug related offences between the period of 1984 to 2009.  On 14 July 2005 the Brisbane Magistrates Court convicted Michelle of the offence of “supply dangerous drugs” and sentenced her to 3 months imprisonment wholly suspended for 2 years.  It was noted that the Court convicted Michelle of a large number of other drug offences on the same day.

1. Michelle was most recently convicted of “possessing dangerous drugs” and “possessing utensils or pipes etc that had been used” on 28 October 2009, at which time the Brisbane Magistrates Court imposed a monetary fine.  These offences involved Michelle having in her possession cannabis sativa and lysergid acid (LSD).

1. Section 83 of the Disability Services Act 2006 (the Act) states that a funded non government service provider who proposes to start engaging, or continue engaging, another person in a service outlet of the service provider may apply to the Director General for a prescribed about the engaged person.

1. Part 10 of the Act makes it compulsory for a person engaged, or to be considered for engagement by a funded non government service provider to undergo criminal history screening.

1. Section 114 of the Act provides the Department with the authority to obtain the criminal histories and other information of persons seeking to be engaged by a funded non government service provider.

1. Section 85 enables the Department to issue either a negative notice or a positive notice about an engaged person.  Section 85(3) states:

Subject to subsection (4), the chief executive must issue a positive notice to the engaged person if the chief executive—

(a) is not aware of any police information about the engaged person; or

(b) is not aware of a conviction of the engaged person for any offence but is aware that there is 1 or more of the following about the engaged person—

(i) investigative information;

(ii) a charge for an offence other than a disqualifying offence;

(iii) a charge for a disqualifying offence that has been dealt with other than by a conviction; or

(c) is aware of a conviction of the engaged person for an offence other than a serious offence.

(4) The chief executive is required to issue a positive notice under subsection (3)(b) or (c) unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of people with a disability for the chief executive to issue a positive notice.

1. In the reasons supplied to the Tribunal and also to the Applicant Michelle Stalley, the Department stated that it did not appear that Michelle had worked with people with a disability or in the disability sector prior to the engagement with Micah Projects Inc.  Therefore the issuing of a negative notice would not cause irreparable or adversely affect Michelle’s ability to gain meaningful employment in the future.  Further, Michelle had stated in her written submission that she had run her own cleaning business and was providing cleaning services outside her engagement with Micah Projects Inc.

1. The Department in their reasons went on to say “given the vulnerability of some clients with a disability to offences characterised by exploitation.  I have balanced the risk factors and determine that clients may be placed at unacceptable risk were Miss Stalley to obtain a positive notice.”

1. The Department further stated “although Miss Stalley has provided a number of references in support of her application including a letter from her psychologist, in consideration of the above, there is sufficient information for me to be satisfied that there is an exceptional case in which it would not be in the best interest of people with a disability if a positive notice was issued (section 85)(4))”.

1. In evidence, Michelle stated that she has been working with people with disability for about 8-9 months with Micah Projects Inc.  She has not been engaged in handling finances of people with a disability but doing general work such as assisting the people for whom she works to shower, combing hair and general cleaning and tidying.  She has not attended with people with a disability in shopping or spending of money.

1. In relation to the most recent drug offences, Michelle advised that she had pleaded guilty to the offences that arose in August 2009 but she advised that the drugs and utensils in question belonged to her son.  At the time police discovered them in her house her son had recently been released from jail and she was afraid he would return there and she informed the police that they in fact belonged to her.  She wanted to defend the charge in court but was advised that legal aid would not assist her and on legal advice she pleaded guilty and a conviction was recorded.

1. The Tribunal was satisfied that Michelle has not been engaged in drug taking for some years and she is keen to continue with her employment with Micah Projects Inc.

1. The Department, in their submissions, stated that the Department had erred on the side of caution in respect of the issuing of the negative notice to Michelle.  There are often dishonesty offences in conjunction with drug offences with respect to people convicted of drug offences and there is a probability of ongoing risk for people with a disability.

1. The Department submitted that the assessment guidelines in relation to criminal history screening of persons engaged in funded non government service provision weight offences differently then people being assessed for blue cards in relation to offences against children or young people and the Department provided a copy of the assessment guidelines to the Tribunal.

1. The Tribunal is aware that the legislation dealing with issuing of positive and negative notices under the Disability Services Act 2006 as well as the Commission of Children and Young People and Child Guardian Act 2000 are similar and almost identical in terms. The issues that the Department and the Commissioner have to take into account as well as the Tribunal in reviewing any decision of either the Department or the Commissioner are identical.

1. It is noted that Michelle had previously been refused a blue card by the Commissioner and had successfully sought a review of that decision.  To my mind the factors to be taken into account in determining whether or not this is an exception case in which it would not be in the best interests of people with a disability for the Chief Executive to issue a positive notice are identical with the factors that need to be taken into account under the CCYPG Act.

1. After listing the evidence and submissions of Michelle as well as the Department, it is the decision of the Tribunal that the Department has not satisfied the provisions of section 85(4) of the Disability Services Act 2006 that requires the Department to establish that Michelle’s is an exceptional case.

1. In the circumstances therefore the decision of the Department of Communities (Disability Services) of 26 March 2010 to issue a negative notice to Michelle Stalley is set aside and the Tribunal directs that a positive notice be issued forthwith to Michelle Stalley.