UTH v Director-General, Department of Justice and Attorney-General - [2023] QCAT 81

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

UTH v Director-General, Department of Justice and Attorney-General [2023] QCAT 81

PARTIES:

UTH

(applicant)

v

Director-General, Department of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

CML 425-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

9 March 2023

HEARING DATE:

9 February 2022

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

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 Section 225 of the Working with Children (Risk Management and Screening) Act 2000 is set aside, and replaced with the decision that there is an exceptional case.

2. The publication of the contents of any document or thing filed in or produced to the tribunal, and any evidence given to the tribunal by any witness, other than as published in these Reasons, is prohibited to the extent that it could lead to the disclosure of the identity of the applicant, or any member of the applicant’s family or any non-party to the proceedings, including any child, pursuant to Section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE LAW- CHILD WELFARE UNDER STATE AND TERRITORY LEGISLATION – Blue Card – where applicant was issued with a negative notice – whether exceptional case in which it would not harm the best interests of children for the chief executive to issue a positive notice – where applicant has a criminal history in relation to drug-related, public order and property-related offences – where applicant is a mature indigenous man –– where applicant expressed remorse for his offending – where protective factors were discussed – where the applicant has an active role as an elder in his community

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 225

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66 (1)

APPEARANCES & REPRESENTATION:

Applicant:

E. Turkovic, Solicitor, Aboriginal and Torres Strait Islander Legal Service

Respondent:

C. Davis, Solicitor, Blue Card Services

REASONS FOR DECISION

UTH is a 52-year-old indigenous man. He applied for a Blue Card enabling him to work with children under the Working with Children (Risk Management and Screening) Act 2000 (the Act) on 15 May 2019, but was issued with a negative notice by the Department of Justice and Attorney-General (the Department) on 21 October 2019.
He filed an application to review the decision of the Department on 20 November 2019. Considerable material was filed in the matter in 2020 and 2021. The matter was initially listed for a hearing on 16 August 2021, which was cancelled. I heard the matter in a one-day oral hearing on 28 April 2022.
At the conclusion of the hearing, I gave directions for the filing of closing submissions by 17 June 2022, and for the giving of my decision after that date.
These are my reasons, and my decision in the matter.

Reasons of the Department

The Department gave written reasons for its decision of 21 October 2019 to issue a negative notice.[1]
[1]BCS-1 to BCS-11.
It noted that UTH was previously issued with a Blue Card in 2007 and 2010. It expressed that during the currency of his last Blue Card his police information changed, and a reassessment of his eligibility to hold a Blue Card was commenced, however his blue card expired before the reassessment was finalised.[2]
[2]Reasons of the Department, 21 October 2019, [1].
It also noted that UTH had made a further application for a Blue Card in 2015, however this was withdrawn.[3]
[3]Ibid.
It stated that UTH had been convicted of a ‘serious offence’ as defined in the Act, and that accordingly, Section 225 of the Act provides that a negative notice must be issued unless it is an ‘exceptional case’ in which it would not harm the best interests of children for the applicant to be issued with a positive notice.[4]
[4]Ibid [2.3].
The Queensland criminal record of UTH, which spanned a period from 1986 to 2014, was set out in the reasons. The offences included assaults, motor vehicle related offences, breaking and entering and stealing, possession and supply of dangerous drugs. Sentences including probation, and community service were imposed, and on some matters no conviction was recorded. No custodial sentence was imposed.
A conviction was recorded in 1988 for an offence of stealing with actual violence whilst armed with an offensive instrument, and an order was made for supervision for a period of two years with restitution of $19. The Department noted that this offence is defined as a serious offence under the Act.[5]
[5]Ibid [5.2].
The reasons noted that UTH had a total of 18 convictions spanning across 27 years from the age of 13 to over the age of 43; and that multiple drug offences had been incurred across 22 years with the most recent such offence occurring in 2013.[6]
[6]Ibid [6].
The decision-maker concluded that she was not satisfied that UTH acknowledged and understood the seriousness of his offending; had ceased using illegal drugs; or understood the circumstances or triggers that led to his offending; or had developed appropriate strategies to avoid relapsing in the future.[7]
[7]Ibid [6], p 10.

Evidence

Four witnesses gave evidence for UTH at the hearing:
(a)Professor Smallwood
(b)Doctor Featherstone
(c)Doctor Palk
(d)UTH
The Department relied upon a bundle of various documents, including material obtained from the Department of Child Safety, Youth and Women; Queensland Police; and Queensland Courts.

Professor Smallwood

Professor Gracelyn Smallwood identifies as an Aboriginal and South Sea Island Elder, and is a member of the Birrigubba Nation. She is an adjunct Professor at James Cook University, and the University of Queensland, and holds a Diploma in Mental Health, a Master of Science in Public Health, and a PhD in Human Rights (Public and International Health). She has worked as a midwife for 45 years, and as a registered nurse for 50 years.[8]
[8]Affidavit of Gracelyn Smallwood dated 28 September 2021, [3], [4], [5].
In her Evidence in Chief, she expressed her surprise that UTH, who she knew personally, had not been granted a Blue Card; and expressed the view that he was the very sort of person that was needed to benefit the indigenous community:[9]
But I’m surprised that (UTH) and his loving wife have had a child that is not biologically related, has taken the child for 18 years, and – because the mother had drug and alcohol problems, and the child is – who I’ve met personally was a – has a few issues from a mental health [indistinct] drug-related issues - that UTH has not been given a Blue Card when he is so involved in a men’s group, he’s involved in ceremonies, dance groups, cultural mentor, especially to my son who works for Youth Justice.
He is a respected person in our community. I’ve known (UTH) for 45 years. He has, on both sides of his family, and in particularly (South-East Queensland location) – I’ve known his elders, and I followed (his) life.
(His) story of being involved in light drugs and petty crime is the story of just about every second Aboriginal Elder or male in our communities, as they’re dealing with the unresolved drug-grief, loss and trauma of the impact of colonisation.
And quite a large amount of our men have turned their lives around, and I’m just surprised that (UTH) was rejected, because he’s the key player that I even call upon from (his North Queensland community) which has the highest crime rate.
So I am 200% supporting this application, and am hoping that the members of QCAT can clearly see, because the gaps widening. It’s not closing. There’s billions of dollars being spent on crime and youth, and it’s not rocket science, I believe if we have more (people like UTH) with Blue Cards and working around Australia, we’d start to close the gap and working in with Government and non--Government organisations.
And I’m an Elder now at 70, and have world and local and national experience, and I never support people that I think are going to fail. And we won’t be setting (UTH) up for failure here.
[9]Transcript 1-13, Line 36 to 1-14 Line 11.
In cross-examination, she described how UTH had assisted her own son, who was now doing ‘so well’, and expressed the view that UTH could assist both children and adults:[10]
I believe that if (UTH) is given this opportunity to get this Blue Card, he would be able to get so many of our children on track again. And he’s not only dealing with children; he’s dealing with adults.
And (UTH) will be able to help the non-indigenous organisations to make better changes, because I’ve complained to Ministers and politicians and all parties, that too many of our programs are from the top-down approach, and not from a bottoms-up approach, assisted by genuine grassroot Aboriginal and Islander People.
So I – I am pleading that you give (UTH) a chance to prove himself and I strongly believe that he will not be set up for failure, and he’ll be helping in the reduction of the crime rate and the reduction of suicides. But he’d also be helping the non-indigenous communities within the government system and outside.
[10]Ibid 1-17, Line 37.

Doctor Featherstone

Dr. Featherstone holds a PhD in the school of midwifery and social work. He is a professional social worker, and his field of expertise is specifically around aboriginal parenting and well-functioning parenting for families in the child protection sector.[11]
[11]Ibid 1-23, Line 22.
He is the CEO of Kummara Limited, which is a community controlled not for profit family support and early intervention service operating in South-East Queensland.[12]
[12]Letter by Doctor Featherstone dated 22 June 2020.
He states that he has known UTH since 2000 when UTH worked for Kummara, leading the Indigenous Inner City Homelessness project. He described UTH as providing ‘a positive role model to his community and family, as a father and recognised kinship carer for the Department of Child Safety’.[13]
[13]Ibid.
He gave evidence that UTH was still working for Kummara in various tasks as a maintenance person, which does not involve access to children. He expressed the view that whilst UTH was not doing work that required a Blue Card, that he would be able to positively impact on youth and young people:[14]
However, given his skills and nature and the fact that we actually are doing quite a lot of work with youth and youth tasks, I actually think he’s – he has the ability, based on his experience, to – to positively impact on youth and young people, based on his experience both as a young person and as a – as a man and culturally his connection with community.
[14]Transcript 1-24, Line 41.

Doctor Palk

Dr. Palk is a Forensic Psychologist, Barrister at Law, and senior university lecturer and senior research fellow with 30 years experience in the assessment and treatment of substance users and violent offenders.[15]
[15]Report of Doctor Palk, 28 September 2021, p 3.
He said that he started seeing UTH in June 2020, and then had brief consultations with him in 2021. He described topics that he discussed with UTH as to the use of alcohol or drugs, whilst noting that he did not consider that UTH had a current problem with them:[16]
Well, I – I can, but can I first start off by saying that when I initially interviewed him, I did not form the opinion that he had an alcohol or drug problem or any problem of violence. It – it was well and truly in the past.
And I was of the opinion that he didn’t need or require the comprehensive treatment, but nevertheless, he wanted to work with me and to go over these issues because he thought that it would assist his case, his application to Blue Card, so I agreed – I agreed to him.
And so, look, we – the – the program was devised or based around an alcohol and drug-related violence program which I developed for the university training when I worked in QUT in conjunction with the police and referrals.
[16]Transcript 1-35, Line 22.
He referred to strategies that UTH had developed to avoid further drug use and offending:[17]
No – not having any associates or you – not having him hang around associates, or if – if he is offered – offered marijuana to say ‘Look, you know, I don’t use that anymore. I’m happy for you to be a friend, but please do not bring it near me and do not offer it to me’. So they’re the sorts of strategies we discussed. And I was confident that he had the strength to be able to do that [indistinct]. And – and, of course, maintaining employment and – and being able to say when he’s had enough to drink, et cetera. But is not drinking at all, but – but he certainly has those strategies.
[17]Ibid 1-41, line 24.
He described UTH as having excellent adaptive functioning skills:[18]
In fact, he’s got – what he’s got is excellent adaptive functioning skills. He’s well qualified. He works hard. He mainly has a positive outlook on – on life, and he operates from a – what we would call a positive, effective framework. He’s not negative. He’s optimistic about the future. And he’s optimistic about facing any challenges.
And he’s very proud of his indigenous culture, and he’s very proud of wanting to be the kind of man that can impart knowledge on younger people and to be a leader and an elder for those people. So, yes, he is indeed a very proud Aboriginal man and – and very optimistic about his future.
So there’s no – there’s – there’s no serious psychological problems at present. I’m not saying they can’t appear in the future. Things can go wrong. If you – you – you lose a loved one, you become depressed, and some of us have a tendency to drink too much or use drugs at those times. That’s why we say the risk is low. We never say it’s – we never say never or he won’t be a risk at all.
[18]Ibid 1-41, Line 43.
He described UTH as presenting as a down-to-earth, matter-of-fact person, who is very candid about his background and his life and his future plans.[19]
[19]Transcript 1-42, Line 34.

UTH

UTH described having cared for his niece since 2004 when she was a six-day old baby. He said that she was on medication, and had been diagnosed with schizophrenia, and was being assessed for foetal alcohol spectrum disorder.[20]
[20]Transcript 1-64, Line 35.
He said that he stopped drinking when he was 20 years old, about six months after the birth of his first daughter; and that he was triggered to give up alcohol by seeing what it was doing to his community, and he wanted to be a good role model, to show them that you don’t need alcohol to survive in this world.[21]
[21]Transcript 1-65, Line 40.
He described his cannabis use, saying that he was not a regular user, but that he would use it to deal with his emotions, which was a wrong choice.[22] He said that he had never used any other harder drugs.[23]
[22]Transcript 1-66, Line 27.
[23]Transcript 1-67, Line 21.
He was asked about an event in 2011 when police found a cannabis plant outside the house he was living in with his two children aged 8 and 13, and his niece aged six. In his evidence he said that it was in the middle of the yard, and they thought it was a weed. He said it had come up after a party. He said that he does not know why he told police at the time that it had started growing on its own, and that he decided to move it to a better location and look after it – but said that he was taken aback from getting raided.[24]
[24]Transcript 1-77, Line 36.
He said that he stopped using marijuana in 2012, as he thought it was time to give up as he wasn’t making the right choices, as it had a big effect on his ability to do what he was supposed to be doing within his community educating the younger men and younger women on their obligations.[25]
[25]Transcript 1-80, Line 45.
He referred to his re-offending in 2013 as to possession of marijuana, and said that he was impacted by it, as he lost his Blue Card and opportunities to work, which affected his family and their livelihood.[26]
[26]Transcript 1-81, Line 35.
He said that he had talked to Dr. Palk about not relapsing into marijuana use,[27] and that his strategy is to stay away from people that are using it[28]
[27]Transcript 1-82, Line 27.
[28]Transcript 1-82, Line 40.

UTH submissions

Closing submissions were filed on behalf of UTH.
As to the evidence of Professor Smallwood, it was submitted that she had first-hand knowledge of the applicant, and that she supported his being suitable to work with children as follows:[29]
14. Professor Smallwood is clearly a very knowledgeable and passionate person both professionally and within the community. She possesses a great deal of first-hand information about the applicant and how he has turned his life around and become a role model within the community. She has first-hand knowledge of his track record working with children, raising his own children and the kinship care of his niece from the age of six days. She is also aware that the applicant’s niece had mental health and behaviour issues that the applicant and his wife managed to resolve to a workable situation. (His niece) is now 18.
15. Professor Smallwood is aware of, and acknowledges the applicant’s past offending in 1986 – 1992, along with the relapses during 2011 and 2013 during difficult personal times for the applicant.
16. It is our submission that the evidence of Professor Smallwood provides strong support for the proposition that the applicant has matured into a fine leader in his community, has learned from his past and is suitable to work with children, particularly indigenous children that have, for whatever reason, lost their way.
[29]Written submissions for the applicant filed on 14 April 2022, [14], [15], [16].
It was submitted that Dr Featherstone equally was aware of the applicant’s past offending, is aware of his work with the community, and supported his being suitable to work with children.
It was submitted that Dr Palk had worked with UTH to provide a sound understanding of his past offending, and relevant risk factors, and strategies to avoid or combat those risk factors.[30]
[30]Ibid [33].
It was noted that Dr Palk did not believe that UTH required counselling and ongoing treatment, or was a medium or high risk in psychometric testing terms, and does not have a tendency to be inclined to be antisocial; and believed that he has excellent adaptive functioning skills, and does not have any serious psychological problems at present.[31]
[31]Ibid [34] to [39].
It submitted that UTH in the materials he had filed, and in his evidence, had addressed the concerns of the Department in relation to his holding a Blue Card.
In Submissions in Reply, filed on 17 June 2022, it was submitted that:
(a)UTH has an excellent family, community, and professional support network[32];
(b)There was no evidence to support a suggestion that his criminal history was not reflective of his use of illicit substances and that his past use has been more extensive than this criminal history would suggest[33] ;
(c)UTH maintains his position that his children have not been exposed to any drug use, drug culture or being exposed to any other behaviour that may have caused pre-conceived ideas about what is wrong and what is acceptable and what is not acceptable within the community.[34]
(d)There was no evidence that UTH had used cannabis or any other illicit substances since 2013[35]
(e)The Child Safety documents clearly highlight numerous examples of his ability to provide a protective environment and act in children’s best interests.[36]
(f)UTH (and his wife) have been model carers and highly successful in providing kinship care for their niece, over almost all of her life; and that he minimises the risk of any harm to his Niece, which shows his commitment and understanding that the needs of children are paramount.[37]
(g)UTH has matured, taken ownership of his past offending, has learned from the past and sought professional help to reinforce insight into his past offending that he has learned in practice in the community and in life in general.[38]
[32]Written submissions for the applicant in reply filed on 17 June 2022 [22].
[33]Ibid [29].
[34]Ibid [35].
[35]Ibid [40].
[36]Ibid [46].
[37]Ibid [47], [48].
[38]Ibid [54].

Submissions of the Department

Closing submissions were filed by the Department.
The Department noted that UTH referred to his support network as comprising his father-in-law (an aboriginal elder), his mother before she passed, Dr Palk, community services, and his aunties and uncles from each side of his family – but that his family members (including his wife or son) were not called to give evidence at the hearing.[39]
[39]Respondent's outline of submissions filed 27 May 2022, [12].
It acknowledged the positive comments made by the witnesses for UTH to the extent that each witness appeared to have some knowledge of his offending behaviours, but it submitted that it is a matter for the Tribunal as to what weight should be afforded to such evidence.[40]
[40]Ibid [14].
It submitted that despite a 20 year gap in drug-related offending by UTH to between 1991 and 2011, that he remained an ‘occasional user’ of cannabis throughout that period, and that it follows that his criminal history is not reflective of his use of illicit substances and that his past use has been more extensive than this criminal history would suggest.[41]
[41]Ibid [16], [20].
With reference to the event in 2011, when the police searched the cars and every room of the house, it submitted that the event raises questions about the extent to which UTH had exposed his children to drugs and drug-related activities.[42]
[42]Ibid [23], [25].
As to his ability to abstain from further substance use, the Department submitted that his strategies were not sufficient to assist him to abstain from cannabis in 2013, and that his evidence casts doubt on the extent to which he can abstain from cannabis in the presence of stressful events in the future.[43]
[43]Ibid [29].
It submitted that the insight of UTH remains a concern, as he did not appear to accept that he had exposed the children to illicit drugs and illicit drug-related behaviours; or accept the finding of the Department of Children, Youth Justice and Multicultural Affairs that he had caused his niece emotional harm; and was inconsistent in his evidence as to what he had reportedly told police.[44]
[44]Ibid [34].

Discussion

The Department made a decision in October 2019 that it was not satisfied that this is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued to UTH.
The Department’s concerns, as articulated in its Reasons, and its submissions, include the criminal record of UTH, his past cannabis use, the extent of his insight into his offending, and strategies he has to prevent re-offending.
As the Department noted in its reasons, UTH has a total of 18 convictions spanning across 27 years. Those 27 years however range from when he was 13 years of age until he was 40 years of age. The offences include violent, drug-related, public order and property related offences. The last offence was in 2014.
The serious offence that the Department identifies in its Reasons is the offence of ‘Steal with actual violence whilst armed with an offensive instrument’, which occurred in mid-1988, and for which the order was ‘Convicted. Director-General exercise supervision for a period of 2 years. Restitution $19’.
The criminal history of UTH is recognised by him. He has given evidence that he has learned from his past mistakes, has adopted strategies to avoid reoffending based upon his realisation that the use of alcohol or drugs is a poor choice, and that he wishes to fulfil his primary obligation to teach members of his indigenous community about their culture and proper ways to live their lives.
The department submitted that the Department of Children, Youth Justice and Multicultural Affairs had found that UTH had caused emotional harm to his niece. In the course of the hearing it was put to UTH that:[45]
The Department have alleged that you may have caused substantiated emotional harm to (his niece) in 2020 and the material indicates that this was because you were no longer to allow her to live in your home because of her behaviour; is that correct?
[45]Transcript 1-85, Line 29.
UTH denied that he had caused emotional harm to his niece, and replied that he had sought help from the Department:[46]
No. We told the Department that we needed some help (indistinct) the rest of our kids (indistinct) one child that they (indistinct) support (indistinct) the incident at the hospital, Youth Justice was the ones that come and took (his Niece) from my house.
[46]Transcript 1-85, Line 33.
Significant evidence was given by Professor Smallwood. She was a compelling witness. She was impressive in her passion, clear argument, and ability to place the life of UTH in context.
Professor Smallwood said that the life of UTH had to be placed in the context of his growing up as an Aboriginal man, and that his life story was similar to very many Aboriginal men of his generation, who had troubled pasts.
She has known UTH personally for a great part of his life, and she applauded his development to becoming an important leader in his community who contributed significantly to the benefit of young people within it.
Her view was that the community requires men like UTH, who have turned away from criminal activity and the use of alcohol and drugs, and who are actively working to benefit their community.
She expressed no reservation as to his working with children, and to the contrary, expressed the strong view, based upon her personal observation, and knowledge of his life history and prior offending, that he posed no risk to children.
Dr Featherstone spoke as a person who had employed UTH, and who knew him well. His observations were consistent with those of Professor Smallwood. His view was that UTH would be able to positively impact on youth and young people.
Doctor Palk, a psychiatrist gave evidence that in his view UTH did not display any antisocial behaviours, had insight into his past offending, and had developed strategies against reoffending. He did not consider that UTH posed any risk to children.
I accept the evidence of each of Professor Smallwood, Doctor Featherstone and Doctor Palk.
In considering whether there is an exceptional case as provided for in the Working withChildren (Risk Management and Screening) Act 2000, (the Act) where the person has been convicted of, or charged with, an offence, I have to take into consideration the same matters as the Chief Executive must have, pursuant to section 226 (2) of the Act, as follows:
(2) The Chief Executive must have regard to the following –
(a) in relation to the commission, or alleged commission, of an offence by the person –
1)whether it is a conviction or a charge; and
2)whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
3)when the offence was committed or is alleged to have been committed; and
4)the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
5)in the case of a conviction – the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the courts reasons for its decision.
No reasons of the courts of that imposed any of the convictions on UTH are available. It is notable that UTH has never been sentenced to a term of imprisonment, and the sentences imposed upon him have not been severe. The offence which is classified as a ‘serious offence’ was 35 years ago, and a minor penalty and minor restitution was imposed.
I am satisfied that the evidence of UTH, as supported by his witnesses, supports a finding that he does have insight into his past offending, and that he has developed strategies to prevent re-offending. It is significant that he has not re-offended for 9 years.
UTH has demonstrated by his care of his niece, who has medical and mental health difficulties, over a period of 18 years, that he is able to care for children. I am satisfied that the suggestion that he caused emotional harm to his niece in 2020 is unfounded.
I do not consider that the incident of 2013, where police searched his house, where children were present, indicates that he exposed his children to drug-use or a drug-tolerant lifestyle. The incident involved a single marijuana plant in the backyard, which was reported to police by a neighbour. UTH said in evidence that he was not cultivating it or looking after it. Whilst this is at variance with his reported comments to police at the time, the incident was in essence a minor one which occurred 10 years ago, and I do not attach significance to it.
Section 225 (1)(c) of the Act provides that the Chief Executive must issue a negative notice to the person if the Chief Executive is aware the person has been convicted of a serious offence – but that provision is subject to Section 225 (2) of the Act.
Section 225 (2) of the Act provides, if a person has been convicted of a serious offence, and if the Chief Executive is satisfied it is an exceptional case in which it would not harm the best interests of children for the Chief Executive to issue a positive notice, the Chief Executive must issue a positive notice to the person.
I am satisfied that this is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued pursuant to Section 225 (2).
I order that:
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 Section 225 of the Act is set aside and replaced with the decision that there is an exceptional case.
I consider this is an appropriate matter in which a non-publication order should be made to protect the identities of the applicant and his family, and that these reasons should be de-identified accordingly. I further order that:
2. The publication of the contents of any document or thing filed in or produced to the tribunal, and any evidence given to the tribunal by any witness, other than as published in these Reasons, is prohibited to the extent that it could lead to the disclosure of the identity of the applicant, or any member of the applicant’s family or any non-party to the proceedings, including any child, pursuant to section 66 (1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).