CRS v Director General Department of Justice and Attorney-General [2023] QCAT 387

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CRS v Director General Department of Justice and Attorney-General [2023] QCAT 387 PARTIES: CRS (applicant) v DIRECTOR GENERAL DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML341-20 MATTER TYPE: Childrens matters DELIVERED ON: 15 September 2023 HEARING DATE: 9 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 confirmed 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. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND -- 1 of 9 -- 2 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 13, 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 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 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 RWH v Director General, Department of Justice and Attorney-General [2021] QCAT 407 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: A Saunders, Legal Officer, Department of Justice and Attorney-General -- 2 of 9 -- 3 REASONS FOR DECISION Introduction [1] The Applicant (CRS) was issued with a working with children clearance (also referred to as a blue card) in October 2017. That exemption was issued under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act). [2] In April 2019 the Respondent (Blue Card Services) was advised that CRS’s police information had changed. That change triggered a reassessment by Blue Card Services of CRS’s eligibility to continue to hold a blue card. As a result of this reassessment, she was issued with a negative notice on 17 June 2020. [3] On 22 June 2020, CRS made an application to cancel the negative notice. After considering that application, Blue Card Services proposed to refuse the application and invited CRS to make submissions about whether or not her case was exceptional. [4] On 24 August 2020, after considering CRS’s submissions and eligibility, Blue Card Services refused to cancel the negative notice (the Decision). The Decision was based on the decision maker’s finding that it would not be in the best interests of children for her to be issued with a Blue Card. The written notice of the Decision included advice that CRS could have the Decision reviewed by this Tribunal. [5] On 27 August 2020 CRS availed herself of the review process and applied to this Tribunal for a review of the Decision. Legislative framework and role of Tribunal [6] The principal legislative enactments relevant to a review by this Tribunal of the Decision are the WWC Act – under which the Decision was made – and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) – under which the Tribunal exercises its review jurisdiction. [7] 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 [8] The Decision is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act. [9] The purpose of a review by this Tribunal of the 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. [10] 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 1 WWC Act s 5. 2 QCAT Act s 20(1). 3 QCAT Act s 20(2). -- 3 of 9 -- 4 Tribunal is, like the original decision maker, guided by the principles set out in the WWC Act. [11] 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 [12] The WWC Act provides, as a starting point, that a person in the position of the CRS, should be allowed to hold a blue card unless that person’s situation is an exceptional case. [13] Thus, in conducting this review of the Decision, the principal issue for determination is whether an exceptional case exists. That is, whether CRS’s situation is such that it would not be in the best of children for a positive notice to be issued.5 [14] 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 [15] In determining whether the CRS’s circumstances constitute an exceptional case it is necessary to consider: (a) The principles for the administration of the WWC Act mentioned 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) Any human right relevant to the decision. (d) Any other matters that are relevant to the decision.7 [16] A determination of whether an exceptional case exists can only be made after evaluating all the available evidence.8 Each matter will turn on its own facts. In this context it can be observed that there was evidence before this Tribunal that was not before Blue Card Services at the time that the Decision was made. [17] 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 [18] 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) 4 WWC Act ss 6 and 360. 5 WWC Act s 221(2). 6 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] – [35]. 7 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42]. 8 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19]. 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. -- 4 of 9 -- 5 (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 CRS include the right to privacy and reputation10 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. Evidence [19] The evidence put before the Tribunal at the hearing, by Blue Card Services, consisted of the document that informed CRS of the Decision and accompanying material (collectively the BCS documents)12 and a set of documents that were obtained pursuant to directions of the Tribunal for the production of documents13 that were produced prior to the hearing of this proceeding (the NTP documents).14 [20] CRS’s documentary evidence consisted of her life story or statement of 11 December 2020 together with correspondence, certificates awarded to her and letters of support. The authors of four of these letters of support also gave oral evidence for CRS. [21] In addition, after the hearing of oral evidence, both parties provided the Tribunal with written submissions. An exceptional case? [22] In addressing the question of whether CRS’s case is exceptional, it is appropriate to summarise her conduct that gave rise to the Decision and to address the s 226 matters that must be considered in determining if an exceptional case exists. The s 226 matters [23] In April 2019 police executed a search at her residence. CRS’s evidence was that she shared this residence with others. During that search, the police located certain items including a glass pipe and a quantity of drugs subsequently identified as methylamphetamine (also referred to as ‘ice’). [24] About four weeks after the execution of the search warrant, CRS faced court charged with possessing dangerous drugs, possession of utensils or pipes that had been used and possessing property suspected of having been used in connection with the commission of a drug offence. [25] CRS entered an early plea of guilty and was released on entering into a $700 recognisance of her own undertaking to be of good behaviour for six months. CRS was also required to attend a drug diversion course. No conviction was recorded. The sentencing remarks of the Magistrate mentioned CRS’s early plea of guilty and her lack of previous convictions. In sentencing the Magistrate considered that she was 10 HRA s 25. 11 HRA s 31. 12 Exhibit 1. 13 QCAT Act, s 97 invests the Tribunal with the power to require the production to the Tribunal of a stated document or other thing. 14 Exhibit 2. -- 5 of 9 -- 6 eligible and willing to attend a drug and alcohol assessment and made an order requiring CRS to attend such an assessment. [26] In this context it should be noted that the offences that CRS was convicted of are neither serious nor disqualifying offences. What follows from this is that the starting point for the consideration of CRS’s case is that a working with children clearance should be issued to her unless her case is an exceptional case in which it would not be in the best interests of children for CRS to be issued with a working with children clearance. [27] Against this background two further s 226 matters merit specific consideration. They are, firstly, the nature of the offences and their relevance to employment of carrying on a business that involves or may involve children and, secondly, other matters relating to the commission of the offence relevant to the assessment of CRS. [28] As to the nature of the offences, they are, as mentioned, drug offences. Whilst it is the case, as contended by CRS, that these offences did not involve children, Blue Card Services properly submit that the offending raises concerns about her ability to judge appropriate behaviour and present as a positive role model.15 Other matters [29] Although s 226 mandates that the above matters must be considered, these matters should not be considered in isolation as there may be other matters that are relevant to determining if CRS’s case is exceptional.16 In considering other matters it is appropriate to address under this heading anything else relating to the commission of the offences that could be reasonably considered relevant to assessment of CRS’s position.17 [30] What other matters are relevant to the determination of this matter? Blue Card Services in written submissions set out two principal matters. The first of these matters is the contention that CRS’s various claims in respect of her offending do not stand close scrutiny and that the Tribunal should exercise caution in accepting CRS’s evidence that the drugs and drug related items located at the shared residence were not hers. [31] The second of these matters is CRS’s asserted lack of insight. A lack of insight is of importance because its absence suggests that the risks associated with the conduct that led to the convictions has not been reduced. [32] In addition, Blue Card Services appropriately emphasise the transferability of any blue card that is issued. [33] As to the first of these matters CRS’s oral evidence was to the effect that the drugs and utensils that she was charged and convicted or possessing, belonged to a 15 In support of that submission, Blue Card Services rely on RWH v Director General, Department of Justice and Attorney-General [2021] QCAT 407, [34] and CW v Chief /executive, Public Safety Business Agency [2015] QCAT 219, [67]. 16 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [16] 17 That is the widely cast ‘anything else relating to the commission … … of the offence’ factor set out in s 226(2)(f) of the WWC Act. -- 6 of 9 -- 7 housemate named Chad. Further, that Chad was not present at the shared residence at the time of the police search and departed to a place or places unknown from the shared residence shortly after being informed of the police search. [34] CRS also gave evidence that a third person, her then (and, at the time of the hearing, current) intimate partner was also residing in the shared residence in April 2019. [35] This evidence, that the drugs and implements were not hers and that she was, in effect, at the wrong place at the wrong time, is difficult to reconcile with the Queensland Police Service Court Brief18 dated 7 May 2019, the date of her conviction. That document sets out under the heading ‘The facts in relation to this matter …’ certain matters including statements attributed to her by the police including that she stated, ‘that she used the glass pipes to smoke ice’ and ‘that she used the scales to measure her ice.’ [36] CRS’s oral evidence was that she does not recall these facts being read out to the court at the time of her guilty plea and sentencing. I consider that CRS’s recollection is, at best, incomplete. This is because the Magistrate who sentenced CRS was clearly of the understanding that she was a user of illicit drugs. The Magistrate’s sentencing remarks include the following comments directed to CRS: ‘Drug and alcohol assessment referral is for the purposes of addressing illicit drug use and providing you with information and accountability for your decisions in using illicit drugs.’ The only feasible explanation for these remarks is that they were based on the police facts as set out in the Court Brief. In this context I also note that at the time of her court appearance CRS was legally represented. [37] Further, Queensland Health records produced to the Tribunal19 record, in March 2021, it would seem on information provided by CRS, that she ceased using methamphetamine ‘after being found in possession of methamphetamine (1.1g, 2x pipe and scales)’. [38] In this context, it can be observed that CRS’s oral evidence as to the circumstances of the police search and her drug use at or about the time of the police search was uncorroborated and was inconsistent with other evidence before the Tribunal. As Blue Card Services submit, CRS’s then (and current) intimate partner did not provide a statement or give evidence which may have assisted in resolving this issue. I am invited by Blue Card Services to draw a Jones v Dunkle inference that the evidence of CRS’s partner would not have assisted CRS. I consider that this is an inference that can be drawn. [39] Blue Card Services submissions highlight this divergence between CRS’s filed evidence and her oral evidence so as to cast doubt on her credibility as a witness of truth. I accept that her evidence should be afforded less weight where it is uncorroborated by other independent evidence. [40] The above matter does support the submissions from Blue Card Services that the Tribunal should exercise caution in accepting CRS’s evidence that the drugs and drug related items located at the shared residence were not hers. 18 Exhibit 1 at BCS-20. 19 Exhibit 2 at NTP-2. -- 7 of 9 -- 8 [41] Whilst a precautionary approach is appropriate given the paramount principle under the WWC Act, each matter needs to be decided on its own facts. [42] CRS filed six statements of support or references. Four of the authors of those statements gave evidence at the hearing and were thus able to be asked questions on their statements. None of these witnesses gave, or were qualified to give, medical or psychological assessments of CRS. They did, however, give very positive character endorsements and were complimentary of CRS’s work as a disability care worker. None of these witnesses expressed any concerns about CRS working with children. Based on their evidence, I accept that CRS is a compassionate and caring disability support worker. The evidence of CRS’s witnesses was of less assistance when it came to an assessment of her insights into her offending. This is because these witness had an incomplete understanding of CRS’s offending. [43] Is CRS’s case exceptional? Having regard to the paramount principle under the WWC Act I have come to the conclusion that her case is exceptional and that it would not be in the best interests of children for CRS to be issued with a blue card. [44] I have a concern that CRS has not yet developed an adequate insight into the conduct that gave rise to her convictions. I consider that the inconsistent evidence that she gave in relation to the events surrounding the police search and her court appearance show that CRS does not yet have adequate insight into the facts and circumstances that gave rise to her convictions on the drug offences that she was charged with. [45] In coming to this decision, I have considered the provisions of the HRA. In particular, the matters mentioned in paragraph [18] above. I consider that the decision that I have come to is compatible with human rights as it is justified by the matters set out in s 13 of the HRA. In particular the decision will have the effect of promoting and protecting the rights, interests and wellbeing of children and young people. Non-publication order [46] 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.20 I consider that such an order is appropriate here. Orders [47] The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. [48] Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, 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 20 QCAT Act, s 66. -- 8 of 9 -- 9 (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. -- 9 of 9 --