Bailey v Director-General, Department of Justice and Attorney-General [2023] QCAT 211

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bailey v Director-General, Department of Justice and Attorney-General [2023] QCAT 211 PARTIES: JARRAD JAMES BAILEY (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML248-21 MATTER TYPE: Childrens matters DELIVERED ON: 2 May 2023 HEARING DATE: 2 December 2022 HEARD AT: Ipswich DECISION OF: Member Hemingway ORDERS: The decision of the Director-General, Department of Justice and Attorney-General that Jarrad James Bailey’ss case is exceptional within the meaning of section 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. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks a review of decision to issue a negative notice and cancel blue card-where applicant has a criminal history without any serious or disqualifying offences – where the charged offences involved possession and supply of dangerous drugs – whether exceptional circumstances exist-whether it is in the best interests of children to issue a positive notice Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 66, s 19 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 167, s 221, s 226 Human Rights Act 2019 (Qld) s 8, s 58, s 31 -- 1 of 15 -- 2 Commissioner for Children and Young People and Child Guardian v Maher &Anor [2004] QCA 492 Re TAA [2006] QCST 11 Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 171 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252 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] QCATA87, [85] TWE v The Director-General, Department of Justice and Attorney-General [2021] QCAT [104] APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Ms Massingham; in house government legal officer of the Director-General, Department of Justice and Attorney- General REASONS FOR DECISION Background [1] This is an application for review of a decision by the Director-General (the chief executive officer), Department of Justice and Attorney-General (‘the Respondent’) that the case of TC (‘the Applicant’) is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). [2] The Applicant held a blue card (working with children clearance) on 21 November 2019. The Applicant is employed as an electrician and works in schools in the course of this employment and seeks a blue card to continue his work. [3] The Respondent received the Applicant’s updated criminal history which was to the effect that the Applicant, aged 28 at the time, was sentenced to two years’ probation in relation to a number of drug offences 1 in the District Court on the 13 May 2020. [4] The Respondent wrote to the Applicant including copies of the updated police information indicating a change of criminal history and requested information and submissions as to why the blue card should not be cancelled. 1 Including five charges of Supply Schedule 1 dangerous drugs and four charges of possession of Schedule 1 or 2 and dangerous drugs and possess anything used in the commission of a crime in Part 2 and being the occupier of a place, permit that place to be used for the commission of a crime. Possess used utensils or pipes, Possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act. Offences committed between 20 March 2019 and March 2020. -- 2 of 15 -- 3 [5] The Applicant responded with submissions but was advised by letter dated 21 June 2021 that his eligibility to hold a blue card had been re-assessed and that the Respondent had issued him with a negative notice under the “WWC Act”. The Applicant was provided with written notice of this decision, reasons for the decision and the relevant review information. [6] On 23 July 2021, the Applicant applied to the Queensland Civil and Administrative Tribunal for a review of the decision of the Respondent to issue him with a negative notice. Legislative Framework [7] The Queensland Civil and Administrative Tribunal (“the Tribunal”) reviews the decision of the Respondent in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). [8] The object of the WWC Act is to promote and protect the rights, interests and well- being of children in Queensland. The paramount consideration in an employment screening decision is the child’s entitlement to be cared for in a way that protects the child from harm and which promotes the child’s well-being. [9] The purpose of the review by this Tribunal is to consider whether the Applicant’s history and current circumstances constitute an exceptional case and to produce the correct and preferable decision with respect to the issue of a negative notice.2 The Review is made by way of a fresh hearing on the merits of the case. [10] In undertaking the review, the Tribunal considers the objects of the WWC Act which is to promote and protect the rights, interests, and well-being of children in Queensland through the administration of a scheme to screen persons seeking employment in particular areas concerning children or who operate relevant child related businesses.3 [11] The chief consideration in this review as stated is that the welfare and best interests of children is the paramount consideration.4 The Tribunal must apply the paramount principle in its review of the decision to issue a negative notice. [12] Section 221 of the WWC Act provides for the issue of a positive notice except where the chief executive finds an exceptional case applies. The decision under review is whether an exceptional case exists such that the presumption under section 221 is rebutted. [13] The legislation does not define, ‘exceptional case’. It is a matter which should be determined on an individual case basis not hampered by a general rule.5 The Tribunal must find an exceptional case exists if, based upon all considerations, it would harm the best interests of children to issue a positive notice allowing the holder an unfettered right to work with or volunteer to work with children in any capacity. [14] Therefore, because the Applicant has not been convicted of a serious offence or disqualifying offence, the Respondent must issue the Applicant a positive notice unless the Respondent is satisfied that this is an exceptional case. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2). 3 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5. 4 Ibid, s 6(a). 5 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [28]. -- 3 of 15 -- 4 [15] The standard of proof required by the Tribunal is that it must be satisfied on the balance of probabilities.6 Neither party bears the onus of proof. The Tribunal is not bound by the rules of evidence but must observe the rules of natural justice in conducting the review.7 [16] In reaching a decision, the Tribunal must consider the mandatory considerations under section 226 of the WWC Act in addition to the paramount principle under sections 360 and 6(a) of the WWC Act and any other relevant factors. [17] It has been established that any hardship or prejudice suffered by the Applicant due to the Tribunal’s decision is not relevant to the finding of an exceptional case. 8This is based upon the paramount principle which is that the best interests of children must prevail over all other considerations. Criminal History and Circumstances of the Offending [18] The Applicant was convicted in the District Court, but no conviction was recorded on the 13 May 2020. Criminal charges arose from a police search pursuant to a search warrant at the Applicant’s residence regarding the possession and supply of MDMA9 and cocaine. Numerous items were located in the search including a straw, a clear vial of cannabis, .05 grams of amphetamines, a glass pipe with residue (concealed). In addition, scales, scissors, two plastic straws, a quantity of clip seal bags, two packets of rollie papers, a manual grinder with small amount of cannabis, a water pipe, a broken glass pipe, a $50 note, a clip seal bag with an unknown white crystalline substance, a clear vial containing a clip seal bag of white powder (cocaine), a clear vial containing a clip seal bag of MDMA, a clear vial containing 12.8 grams of cannabis. [19] Police questioned the Applicant who stated that he had been supplying MDMA to people once a week for the last 12 months. The sales were done at parties, festivals or his residence. He stated that he was not always paid for the MDMA. [20] He further stated that he supplied certain amounts of certain drugs on certain dates.10 [21] The Applicant made full admissions in questioning regarding the offences, made an early plea and was dealt with in the District Court. [22] The Applicant subsequently pleaded guilty to all offences. No conviction was recorded, and he was sentenced to two years’ probation. The Respondent’s Case 6 Briginshaw v Briginshaw [1938] HCA 34. 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b). 8 Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J). 9 MDMA is a drug, Methylenedioxymethamphetamine. 10 On 14 March 2020 1 gram of MDMA to X at a party. He used scales to weigh the drugs. On 20 March 2020 at about 11pm he supplied 1 gram of MDMA to Y for $150 but was only paid $50. She originally requested cocaine. He delivered it to her personally and used the scales to weigh the drugs. The Applicant stated that the $50 note was the payment from Y. He admitted the powders and crystalline substances were MDMA and Cocaine. He admitted the substance was cannabis and the grinder was his. and all other items located by Police were his. He admitted smoking cannabis through joints but that he had used two glass pipes to smoke amphetamines. He admitted friends would come over weekly to his place over the period of 12 months to smoke cannabis because they knew he had it and this was one of his downfalls. -- 4 of 15 -- 5 The documents relied upon by the Respondent (BCS 1-062 ) (a) Reasons for decision 21 June 2021 (b) Application form 23 July 2021 (c) Criminal History Commenced May 2020 (d) Letter requesting submissions 2 September 2020 (e) Submissions received enclosing references and other material (f) Respondent’s Negative Notice 21 June 2021 (g) Notification of Negative Notice to Employer 21 June 2021 (h) Material receive following negative notice Auscript BCS 59 (i) Material provided by Dept of Transport Traffic Record 5 November 2011 to 4 November 2024 (j) Material provided by Department of Corrective Services Commenced 13 May 2020 [23] The Respondent states that the offending relates to the period between 20 March 2019 and 21 March 2020. [24] The Respondent submits that the offences are relatively recent and frequent and the last as recently as 2020. Further, the Respondent states that the offending was only terminated due to police intervention. [25] The Respondent also states that the offences, whilst not serious offences, are significant. The WWC Act requires that all criminal offending be considered as relevant to the issue of a blue card. The Respondent cites the potential negative effects on children and young people of illegal drug use; because the harm caused by drug use is well documented and the costs to the community are high in terms of the health, welfare and family breakdown issues associated with illegal drug use. [26] The Respondent submits that the absence of offending does not necessarily mean a genuine rehabilitation as at the time of the issue of the Negative notice the Applicant remained on a two-year probation order which concluded in May 2022. [27] The Respondent’s assessment is unchanged by the submission of the Applicant that at the time of the offending, he was at a low point and had a massive lapse of judgment. The Applicant indicated that he had used drug rehabilitation Services including Lifeline and Lives lived Well intermittently. The Respondent states that the time in which the Applicant has been rehabilitated is brief and is not necessarily an adequate indicator of genuine change. [28] The Respondent refers to the witness E in the Statement of Reasons, stating that on balance her summation of his good character does not sufficiently mitigate the risk factors identified in the assessment. [29] The Respondent’s submissions state that the Applicant claims that his drug offending related to a period of stress that the Applicant was experiencing in relation a severe work-related injury. -- 5 of 15 -- 6 [30] The Respondent’s submissions state that the material further suggests a lack of insight by the Applicant in relation to his use and supply of cannabis and other drugs and the use of cannabis amongst his support network including friends and associates. [31] The Respondent submits that because a blue card is transferable, it cannot be made subject to conditions. The Respondent states that this is a relevant consideration for the Tribunal. [32] The Respondent submits that the Tribunal must consider the supremacy of the paramount principle when considering if this is an exceptional case and to balance this against rights of the Applicant. The Human Rights Act 2019 (Qld) (“HRA”) applies to this case and must be considered by the Tribunal. [33] The (“HRA”) states that, when acting as a public entity the Tribunal is required to consider, “human rights Parliament specifically seeks to protect and promote, and to act and make decisions in a way that is compatible with human rights. The Tribunal must also interpret statutory provisions, to the extent possible that is consistent with their purpose in a way that is compatible with human rights.11 [34] The Respondent submits that there are several competing human rights relevant to the decision before the Tribunal. Both the human rights of children and the Applicant must be considered. [35] The Respondent cites the Tribunal’s decision in the case of SSJ12 concerning the application of the HRA when the Tribunal is acting as a “public entity”. In that case the Member stated that the Tribunal must specifically refer to the interpretation it has applied to the facts in order to demonstrate that the decision is compatible with human rights. If the decision abrogates rights, then the decision must be reasonable and justifiable in all the circumstances and the least restrictive decision that could be made on the facts. [36] The Respondent submits that the finding of an exceptional case will still be compatible with section 13 of the HRA because the intention of Parliament is to give priority to the rights of the child as is required under the WWC Act. [37] The Respondent submits that any finding resulting in limitation on the Applicant’s human rights is still consistent with the object, purpose and paramount principle of the WWC Act which is that the welfare and best interests of children are paramount.13 [38] The Respondent does not consider that the Applicant displays sufficient insight or has adequately addressed the triggers for his offending. The Respondent considers that the recency of the offending and the fact that the drugs were supplied to friends over a period of time shows a lack of insight into the seriousness of this offending. [39] The Respondent states that the Applicant has not identified the triggers for his offending and that these therefore have not been adequately addressed. The Respondent considers and that a relevant risk support network has not been identified. Applicant’s Case Documents relied upon by the Applicant 11 Human Rights Act 2019 (Qld), section 58. 12 SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252, [110]. 13 Respondent’s submissions dated 13 January 2021 para 73-75. -- 6 of 15 -- 7 (a) Application for Review (b) Submissions Dated 24 August 2022, 28 September 2020, 16 September 2021 (c) References (i) M- 20 October 2022 (ii) E -11 May 2020 (iii) L- 11 May 2020 and 8 June 2022 (iv) Q- 7 June 2022 (v) P-23 October 2022 (d) Drug Test Results 23 August 2022 (e) Work capacity Certificate 5 September 2019 [40] The Applicant submits that the offending occurred at a time of personal hardship related to his serious workplace injury involving crush fractures to his ankle and foot where he believed that he may lose his foot. He states that the offending happened at allow point in his life and was completely out of character. [41] The Applicant states that he believes his offending arose from the nature of company he was keeping at the time and that he has now severed ties with these people. He does not know what has happened to these people as he no longer mixes with them. [42] The Applicant indicated he had used drug rehabilitation telephone services including Lifeline and Lives Lived Well. [43] The Applicant submits that the has been in stable employment for 11 years with the same employer following completion of year 12 and an apprenticeship. He is now a respected and senior tradesman managing four other tradesmen. Since losing the blue card he has worked in positions with the same employer which do not require the blue card. [44] He stated that he had undergone drug testing producing a negative result on the 26 June 2020, 27 August 2020, 29 October 2020, 2 July 2021. All tests returned negative result to Cannabis, Cocaine, Opiates, Amphetamines, Methamphetamine and MDMA. [45] The Applicant states that his personal circumstances evidence that he does not present a risk to children. He is aware of the need for children to be kept safe. He is in a stable relationship and says he has strong family connections and support and is regularly at child-centred events. This is supported by his witnesses. [46] He states that he cooperated with the police investigation and pleaded guilty early and that he did not receive custodial sentence or have a conviction recorded. He refers to the Sentencing remarks in this regard. He states that these are factors in his favour. [47] He states that the criminal behaviour was out of character and is now behind him and the negative notice was a frustrating experience which made him feel useless. He stated that he voluntarily stopped child-related work. His goal is regaining his blue card so that he can work in schools as previously. He believes he does have the necessary insight and does not present an unacceptable risk to children. -- 7 of 15 -- 8 [48] He contends that the Probations Officer assessed him as low risk of offending, scoring 4 /100 for risk level of re-offending. The Witnesses for the Applicant [49] All referees were unanimous in their praise for the Applicant in the workplace as a colleague and family member and partner. A general theme in the evidence of all witnesses was that the Applicant was a valued and successful person skilled and dedicated at work and also a safe person for their children to be around. [50] M is the partner of the adult. She holds a senior and responsible position as a Clinical Nurse. She states that she holds a blue card and understands the blue card process. She states that the Applicant attends many child-centred events. She states that he is open and honest and has great positive interaction with the children who are present. In cross-examination, she states that they have talked though the whole scenario regarding his offending. She believes he understands the negative impact of drug-use on the community and family and that she believes he now realises this. She stated that the Applicant did not seek professional help as he has a strong network of support in family and appropriate friends. She stated that she had no direct training or qualifications in regard persons affected by substance abuse but appreciates the negative effects of this upon the community. [51] E is the Aunt of the adult who has known him for his whole life. She is aware of his criminal offending and expressed shock and dismay at these events regarding it out of character. She stated that he has had success with his working life and that she sees him as a loving and positive family member hosting his family at Christmas lunch at his own home. She stated that he is a fantastic uncle to his nephew and two nieces. She states that he has had a long period prior to the offending of positive family interaction and no previous concerns. She states he is loved by the whole family who continue their support for him despite the offending. She was unavailable for cross examination by the Respondent. [52] P states that the Applicant was his supervisor at work. He has known the Applicant since 2014. He is aware of the drug charges against the Applicant, referring to them as previous indiscretions. He commends the Applicant’s competence and work ethic. He states that the Applicant is patient with his (Witness P’s) seven-year-old step-son, attending family dinners, babysitting and taking him for drives in his vintage car and is a beneficial influence on him in the way he speaks and cares for him. This witness states that the Applicant continues to rehabilitate himself by exercising different passions such as camping, fishing and renovating his family home. He agreed with the Respondent in cross-examination that he himself holds no professional qualifications in mental health training and was unable to comment on the mental health of the Applicant. He stated that the need for counselling depends upon the individual. He believed the criminal proceedings had a fair outcome but was not reflective of who the Applicant is. [53] L is the employer and states that he has seen the Reasons for the Respondent’s decision. He states that the Applicant is a good worker and leader and was trusted with a master key in the course of his duties. He states that the Applicant is loved by M’s teenage children. He is close with this family and is trusted. In evidence he stated that the Applicant as strong willed, if he says he will do something he will. He states that he does not believe the Applicant is a risk to children. In cross examination, he stated though the drug offences led to a discussion about sacking, the Applicant was not sacked and there was no evidence of his being affected by drugs at work. He stated -- 8 of 15 -- 9 that that there was an investigation about the Applicant’s accident with the bob-cat with drug testing undertaken later. He stated that he would not have permitted the Applicant to work if affected by drugs. He stated that random drug tests are standard across the industry. [54] Q is the sister for the Applicant. She was not available for cross examination but states that she was aware of the charges and convictions against the Applicant but that she holds no concerns of his care for her children who adore him. She states that he minds the children, including overnight care and outings. She states that she believes he is remorseful for his actions. Cross examination of Applicant [55] In cross examination, the Applicant stated that a group of acquaintances led him into drug use and that at the time he was in a dark and crushing depression due to his injury. He agreed that he supplied drugs. He stated that he had cut ties with these acquaintances. He agreed with the Respondent that the drugs were for himself and friends at parties, stating he would share the drugs, and this was his downfall. [56] In cross examination, the Applicant stated that he mixed drugs taking a number of different drugs. [57] He stated that he was always able to complete his work in a professional manner. He denied the drug-use contributed to his injury. He stated that the injury occurred at a time when they were short-staffed and was a lapse of judgment. The Applicant stated that he only used drugs on the weekends and never during work. He did not comment on the issue of the length of time drugs remained in his system. [58] He agreed with the Respondent that his drug use and offending predated his injury, despite his claim that the drug use was in response to his injury. [59] The Respondent questioned the Applicant concerning the Work Capacity Certificate dated 5 September 2019, completed by Dr Loch, which states in response to Part C I have prescribed medication that may impede safe work, travel or cognitive function. Dr Loch has ticked no in response to this statement. [60] The Respondent queried the Applicant about the accuracy of this statement. The Respondent asked the Applicant about his statement of the severity of his injury and that he was only off work for two months. The Applicant stated that he did not request further medication. He stated that he only used Panadol and Neurophen, not pain killers. He agreed that he self-medicated. [61] He agreed with the Respondent that the sentencing remarks say the offending was not serious but was not harmless. [62] In respect of his propensity to reoffend, he stated that he did not seek a mental health plan or drug rehabilitation treatment but did submit to drug testing. He stated that he believed that everyone had mental health issues, but he did not seek professional help. He agreed that none of his witnesses had any training in addressing substance abuse issues. He stated that he felt he was done with drug use and did not need help because he could rehabilitate himself. He stated that he does not need mental health help now. [63] He stated that he returned to light duties after his injury and did not request a mental health referral. -- 9 of 15 -- 10 [64] He stated that he had been in contact with Lifeline and Lives Lived well but did not need on-going assistance as he had ceased drug use. He stated that he had undergone drug testing producing a negative result on the 26 June 2020, 27 August 2020,29 October 2020, 2 July 2021. All tests returned negative result to cannabis, Cocaine, Opiates, Amphetamines, Meth Amphetamine and MDMA. [65] He stated that he did not consider himself a risk to children or that drugs continue to impact him. Section 226 of the WWC Act Protective factors [66] Maher’s14 case raises a consideration of the risk and protective factors in a given set of circumstances. In this case, the Tribunal considers the protective factors in this case to be: (a) Satisfactory completion of his probation; (b) No evidence of further offending; (c) The existence of negative drug tests; (d) The references which attest his regular positive interaction with children in various family and friendship groups including overnight stays; (e) The stated high regard in which the Applicant is held by peers, family and friends as evidenced by his referees who are credible and substantial; (f) The Applicant’s partner (a trained health professional ) has provided informal support by way of debriefing the significance of his prior criminal offending with the Applicant. Though untrained in substance abuse treatments, she hold a senior role as a health professional and so her evidence holds more weight for this review; (g) The Applicant’s stated commitment to remaining productive in the workforce; (h) The Applicant is in stable employment and has a stable personal relationship and owns his own home subject to mortgage. Risk factors [67] In this case the Tribunal considers the risk factors to be: (a) The Applicant’s evidence appears to the Tribunal to minimise the seriousness of the offending and personal drug use, both illegal activities; (b) The evidence is that it was not until the Applicant was apprehended and convicted that the Applicant displayed concerns about the seriousness of the situation as it impacted him in the employment context and personally; (c) The Applicant shows limited insight into the connection between the acceptance of drug use and the effect on his capacity to work in child- related employment; 14 Commissioner for Children and Young People and Child Guardian v Maher &Anor [2004] QCA 492. -- 10 of 15 -- 11 (d) The Applicant does not fully acknowledge the effect of his conduct on others and is mainly concerned with how the outcome of the criminal process has affected him and his prospects of chosen employment. [68] The Tribunal notes the submission of the Respondent that the correct interpretation of risk and protective factors is a qualitative assessment not a quantitative one. The Tribunal accepts that it is not required to balance risks and protective factors in determining if an exceptional case exists and should apply additional weight to any risk factors that are established.15 Consideration of the Evidence Section 226 WWC Act factors [69] Section 226 of the WWC Act refers to certain factors the Respondent must have regard to in establishing if an exceptional case exists. Above all, the paramount consideration remains the welfare and best interests of children. In regard to section 226 of the WWC Act, the Tribunal must take into account the following factors. [70] The Applicant pleaded guilty and was convicted of drug offences that between 20 March 2019 and 21 March 2021. The offences are not serious or disqualifying offences. [71] No children were present at the home of the Applicant when the offences were committed. There is no evidence to suggest he had the care of children when potentially drug -affected. [72] The Applicant pleaded guilty to nine charges in total of Supplying, Possessing and having utensils for drug use on 13 May 2020 in the District Court at V. His Honour, Chief Judge B sentenced the Applicant to a period of probation of two years and did not record a conviction.16 [73] The Judge took into account his age, his early plea, his lack of a criminal history, and cooperation with the investigation. The Judge reminded the Applicant that it was within the court’s power to impose a custodial sentence in the range of up to twenty years. The Judge did not record a conviction but stressed in the Sentencing remarks that the Applicant should not regard himself as getting off Scott free. [74] The Tribunal notes the information supplied by the Queensland Corrective Services Department regarding his adherence to the Court’s order in regard to his probation as follows: This information relates to the records of the Applicant’s probationary period. The Applicant did not report any mental health concerns or adverse police involvement. He reported as directed. Periodic probationary interviews occurred. There was no evidence of further offending. He self-reported the situation in regard to his continued employment as an electrician. He denied a financial motivation to supply drugs in this process and also denied requiring assistance to abstain. The Department continued to assess his level of risk. Noting that he had no criminal history beyond the index offences and that he had not been charged with trafficking drugs. He was assessed as low risk and allowed to report each three months. It is recorded that on 13 May 2020 that the 15 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]- [7]. 16 Sentencing Remarks BCS 61. -- 11 of 15 -- 12 Applicant reported that some of his friends continue to use illicit substances recreationally but does not believe this will impact him. [75] The Applicant has a significant criminal history related to the possession and supply of drugs with no further offending history. Regarding the submission that the offending is recent, the case of Lister no 2 is instructive on this point. The Appeal Tribunal stated in that case that the passage of time without further offending, of itself is not conclusive that the risk of harm to children is reduced.17 [76] This view must be balanced with the independent evidence of the probation officer, the employer, the family, friends and partner who are unified in their belief that the Applicant shows no further concerns about drug taking. This carries considerable weight with the Tribunal on this point. [77] The decision under review is whether the Applicant’s is an exceptional case which will displace the presumption in section 221 of the WWC Act. Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to the following matters: ... the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here designed to protect: children. 18 [78] The Tribunal must be satisfied as to whether this is an exceptional case such that it would not harm the best interests of children for the Applicant to have a blue card. The test is not simply whether the Applicant poses a threat to children or not. [79] The standard of proof is that the Tribunal must be satisfied on the balance of probabilities19 and bearing in mind the gravity of the consequences that an exceptional case exists. The burden of proof is not borne by either party. [80] In this case the gravity of the consequences if a blue card is issued has considerable weight. The Applicant’s articulation of his insight into the effect of his conduct on others is limited. [81] The Respondent submits and the Tribunal concurs that the damage to the community and children in particular caused by illegal drug use is significant. People affected may be children and young people who may be damaged directly or indirectly by the use of illegal drugs. It is this aspect which is of concern to the Tribunal when considering the suitability of the Applicant to work unsupervised with children or in child -related roles. [82] The submission of the Applicant that there is no evidence of supply to, or involvement of minors ignores the fact that once supplied, the Applicant has no control of the use of the illegal substances or the conduct of those using the drugs or who may be exposed to the use of illegal drugs.20 The Sentencing Remarks deliberately drew the 17 Commissioner for Children and Young People and Child Guardian v Lister No 2 [2011] QCATA87, [85]. 18 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]. 19 Briginshaw v Briginshaw (1938) 60 CLR 336. 20 TWE V The Director General, Department of Justice and Attorney General [2021] QCAT [104] -- 12 of 15 -- 13 Applicant’s attention to the maximum penalty for his offences in order to impress upon him how seriously his criminal offending is regarded. [83] Witness E, M and Q all state that they believe he understands the impact of his offending on others, but the Applicant himself does not articulate any depth of real understanding. [84] The Tribunal notes the decision in Re TAA21 which describes the value of insight as follows: The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children. [85] It is not a requirement that the Applicant express his insight or his remorse in any sophisticated manner. The Tribunal bears in mind that he is an advocate, (a highly specialised skill) for himself as well as being the Applicant. Though hardship to him is not a relevant consideration22, the Tribunal is mindful of the constraints on the Applicant in the review where the Applicant performs a dual role. [86] In the unreported decision of Judicial Member DJ McGill SC, in SWJ his honour remarks at paragraph 33 that: It is necessary to bear in mind the appellant in the proceedings has two roles, as witness and as an advocate. If as an advocate he makes a legitimate submissions that breaches of the protection order the subject of the offences and charges were not violent, or relatively serious , examples of such breaches, that should not be characterised as his minimising the seriousness of his offending.23 [87] The Tribunal is aware that the Applicant could seek professional representation and has chosen not to do so. Any limitations of his personal ability to verbally express insight and remorse must be considered carefully because he is performing two roles. This Tribunal has regard to the totality of his evidence presented in his case. [88] The Tribunal makes the following findings: (a) That the Applicant, though unable to articulate the fact in any depth, has shown by his conduct, changed relationships and positive interaction children in numerous contexts that he has developed sufficient insight into the effects and potential effects of his drug–related conduct upon friends, family and children, and the wider community sufficient that he does not pose an unacceptable risk to children. (b) That the Applicant has expressed remorse for his actions by acceptance of his penalty and restrictions. He has completed probation uneventfully accepting the restrictions placed upon him, he shows consideration to children in particular the child of witness B; and generally, respect and understanding of the process 21 Re TAA [2006] QCST 11, [97]. 22 Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J). 23 SWJ Unreported. -- 13 of 15 -- 14 he has undergone in attempting to regain his blue card. This conduct demonstrates an acceptable level of insight; (c) The Applicant has developed a strong support network of work and family colleagues, who support an appropriate attitude to illegal drug use, understanding the wider ramifications of this conduct. The Applicant’s family and employer and colleagues all attest to his good character and positive on- going interaction with children; (d) That the Applicant has taken steps to address negative outcomes for himself, by undertaking counselling and by changing his activities to healthy recreational pursuits such as camping, fishing and renovating his home. [89] The Tribunal has considered the relevant provisions of the legislation (WWC Act) and the QCAT Act and the specific findings about the Applicant and the conduct of the proceedings of this Tribunal. [90] The Tribunal is satisfied that the HR Act has been complied with and that it has: (a) Given proper consideration to human rights relevant to the decision; (b) Acted and made this decision in a way compatible with human rights; and (c) in making the decision the Tribunal acted reasonably in the face of a statutory provision such as that containing the paramount principle. ”24 [91] The Tribunal accepts the submission of the Respondent that the paramount principle justifies the limitation upon the rights of the Applicant and so a finding of exceptional case would still be compatible with the provisions of the HR Act. On these facts however, there is no limitation of the human rights of either children or the Applicant so that the decision is compatible with the provisions of the HR Act. [92] The WWC Act requires the Tribunal to ensure that the protection from harm and the welfare and best interests of children is the paramount consideration when determining if an exceptional case exists.25 [93] In the Tribunal’s view this is not an exceptional case because the Applicant has fully demonstrated by conduct that he understands the need to prioritise the health and well- being of children and is capable of carrying that into practice. The protective factors in his case minimise the risk to the safety and wellbeing of children. He has managed to cease his use of illegal drugs; comply with his probation order and commence engaging in rehabilitative activities such as camping, fishing and maintaining his home. He is independent and in a stable relationship and long standing employment. He engages regularly with family including children, friends and colleagues and avoiding past negative associations. He has not further offended. In these respects, he presents as a positive role model for children. [94] Children have a right to be protected from exposure to drug involvement and to be cared for by people who are not using drugs that may impair their ability to promote and protect children’s best interests. [95] There is no power to issue a conditional card and once issued, it is fully transferable across all areas of regulated employment and business. The Applicant could seek and 24 Human Rights Act 2019 (Qld), section 58. 25 Working with Children (Risk Management and Screening) Act 2000 (Qld), section 360. -- 14 of 15 -- 15 be employed to care for children in regulated employment irrespective of his initial stated intention. [96] The totality of evidence in this case leads to a conclusion that the circumstances do not raise the possibility of an unacceptable risk to children such that it would be against the best interests of children for the Applicant to be issued with a positive notice and a blue card. Weighing all these matters, on balance, and having regard to the paramount consideration under the WWC Act, I am satisfied that the Applicant’s case is not an exceptional case and that the decision to issue a negative notice to the Applicant is set aside. -- 15 of 15 --