AM v Director General Department of Justice and Attorney General [2023] QCAT 6

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AM v Director General Department of Justice and Attorney General [2023] QCAT 6 PARTIES: AM (applicant) v DIRECTOR GENERAL DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) APPLICATION NO/S: CML099-21 MATTER TYPE: Childrens matters DELIVERED ON: 3 January 2023 HEARING DATE: 18 November 2022 HEARD AT: Southport DECISION OF: Member McDonald ORDERS: The decision of the Director-General, Department of Justice and Attorney-General made on 3 March 2021 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 set aside and replaced with the Tribunal’s decision that the applicant’s case is not exceptional. The Tribunal prohibits the publication of the names of the applicant and any witnesses appearing for the applicant. CATCHWORDS: Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360, s 580 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 and Anor [2004] QCA 492 Re TAA [2006] QCST 11 APPEARANCES & REPRESENTATION: -- 1 of 9 -- 2 Applicant: Self represented Respondent: C Davies, Legal Officer. REASONS FOR DECISION [1] AM, a 27-year-old man, applied for a positive notice for a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). He seeks a blue card to enable him to finalise the requirements of his nursing studies. [2] Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. 1 The chief executive was satisfied the case was exceptional within the meaning of the WWC Act. [3] The respondent issued a negative notice on 3 March 2021. AM seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act. [4] The purpose of a review in the Tribunal’s review jurisdiction is to produce the correct and preferable decision2. The overarching principle guiding this decision pursuant to the WWC Act is that that the welfare and the best interests of a child are paramount.3 The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.4 The principles under which the WWC Act is to be administered are: (a) the welfare and best interests of a child are paramount; (b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.5 [5] Section 221 of the WWC requires a working with children clearance to be issued unless I am satisfied it is an exceptional case, in which it would not be in the best interests of children for a working with children clearance to be issued. [6] The term ‘exceptional case’ is not defined in the WWC Act. Whether this case is an exceptional case is a question of fact and degree, to be decided in on a case-by-case basis having regard to: ...the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.6 [7] In determining whether an exceptional case exists the Tribunal must be guided by the paramount principle of the welfare and best interest of children. It must have regard to the non-exhaustive mandatory considerations stated at s 226(2) WWC Act. 1 WWC Act, s 22 (2). 2 QCAT Act, s 19(a) s 20. 3 WWC Act, s 6, s 360. 4 WWC Act s 5(b). 5 WWC Act s 6. 6 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291. -- 2 of 9 -- 3 [8] The Tribunal is not limited by these considerations and may take into account all relevant considerations.7 [9] The Tribunal is acting as a public entity when conducting an administrative review of a decision about child related employment screening such as is the subject of this application. It carries obligations to ensure it makes a decision in a way that is compatible with human rights,8 and to give consideration to any human rights affected by the decision.9 A decision will be compatible with human rights if it does not limit human rights or limits a human right only to the extent that it is reasonable and demonstrably justified.10 Human Rights are ascribed to an individual.11 Application of s 226(2) of the WWC Act: [10] The Tribunal must have regard to the non-exhaustive list of matters at s 226(2) of the WWC Act in determining whether there is an exceptional case when a person has been convicted or charged with an offence. [11] AM’s criminal history reveals that the applicant has: [12] On 18 September 2013, AM was convicted on three counts for possession of dangerous drugs, and Possession of utensils and pipes that had been used.12 [13] On 11 February 2023, AM was convicted of unlawful use or entry of vehicle. 13 Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence [14] None of the charges or convictions on the applicant’s criminal history are serious offences14 or disqualifying offences15 under the WWC Act. It is nevertheless accepted that Parliament intended that all offences on a person’s criminal history be able to be accounted in determining suitability to work with children.16 When the offence was committed or is alleged to have been committed [15] AM’s drug offences occurred in August 2013, when AM was aged 18 years. In January 2020, at age 25, he unlawfully entered a vehicle that was not his.17 His traffic history reveals driving offences on 2 December 2019, drink driving over the limit. AM is now aged 27 and has since completed a substance rehabilitation program. The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children 7 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492. 8 Human Rights Act 2019 (Qld) s 58. 9 Ibid, s 58 (5). 10 Human Rights Act 2019 (Qld) s 8. 11 Human Rights Act 2019 (Qld) s 11(2). 12 Applicant’s Criminal history BCS 16-18. 13 Ibid. 14 WWC Act Schedule 2. 15 WWC Act Schedule 4. 16 Explanatory notes to the Commission for Children and Young People Bill 2000, page 11. 17 BCS 20. -- 3 of 9 -- 4 [16] AM convictions are drug related. His drug offences arose from a police search of his home in August 2013 where 1 gram of cannabis and 0.3 grams of methylamphetamine were located. His vehicle was searched later that month and a further 0.3 grams of methylamphetamine and an electric grinder was located. 18 [17] His traffic offences of drink driving it is established in the evidence occurred when he stole his father’s car and smashed it in 2019.19 [18] On 17 January 2020, in the early hours of the morning the police found AM asleep in another vehicle not his own. The police brief describes AM as being heavily affected by drugs, which he later admitted to police. 20 [19] Although not directly child related offences, these offences remain relevant to consider. The respondent submits that these offences raise questions about his regard for the safety and well-being of other road users and his respect for the law, which are important elements of working with children. The respondent suggests that the offending raises questions of the applicant’s ability to create a protective environment for children, noting previous decisions which emphasise that it can be harmful for children to become aware of people who don’t respect the law, creating confusion as they try to develop a sense of right and wrong. 21 [20] AM’s evidence is that these offences were committed prior to a successful rehabilitation between 18 December 2019 and 6 March 2022, following which he has not returned to drugs or criminal behaviour.22 There is no evidence of any offending since that time. He has acknowledged that he did continue to use drugs between 2013 until 2020,23 but has not since his completing residential rehabilitation. The record reflects non-residential case management for rehabilitation since that time24 and ongoing medical monitoring.25 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 the court’s reasons for its decision [21] The 2013 drug offences no conviction was recorded, and he was instead directed to drug diversion and to be of good behaviour for a period of four months, upon entering a recognisance of $150. In sentencing him to this, Magistrate Dowse described the path he was on as a “certain road to the scrap heap”26 and afforded him the opportunity to redirect his life. [22] Similarly in 2020, no conviction was recorded, a good behaviour order was made for 6 months upon entering a $400 recognisance. Sentencing remarks of Magistrate Costanzo indicate that the early guilty plea as well as his return to rehabilitation and progress with it was recognised in the sentence. His stated the sentence was to 18 BCS 23. 19 BCS 62. 20 BCS 20. 21 CW v Chief Executive Public Safety Business Agency [2015] QCAT 219. 22 BCS 45, Applicant’s Life Story. 23 Applicant’s life story. 24 NTP 151. 25 NTP 146-150. 26 BCS 54. -- 4 of 9 -- 5 encourage him to stay on his path to rehabilitation “so you can get through this awful period” 27 At hearing, AM stated that he had seen that in himself, and acted to change his life. Any information about the person given to the chief executive under sections 318, 319, 335, 337 or 338 of the WWC Act or section 138ZG of the Disability Services Act 2006 [23] There is no information relevant to these provisions. [24] Anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person Other relevant factors: Conduct pre rehabilitation [25] Prior to rehabilitation, AM’s behaviour demonstrated some concerning features. The record reflects a disclosed drug and alcohol misuse across an 8-year period28. On 3 December 2019, he stole his father’s car while intoxicated and crashed it, resulting in damage to the car described as being “totalled”.29 He was convicted of driving under the influence of liquor and disqualified from driving for 6 months, and fined $1200. 30 This is behaviour causes concern about AM’s respect for others and the law and ability to provide an adequate role model to children at the time. AM’s evidence of his rehabilitation and abstinence from substance misuse [26] AM described himself as a “changed person” since completing residential rehabilitation in early 2020. He said he was not going back to his way of life prior to this and was future focused. He acknowledged that in this past he had been not fit to work with children but that this was not how his life is now. He reflected that had been “relentlessly bullied” and he had “hated himself” as a youth in a country town where he was not accepted for his sexuality. After a deeply traumatic experience, arising in what was described as an abusive relationship, and he said that had later turned to drugs to escape from reality. He told the Tribunal that he had spent some time in drug recovery services and had a relapse in early 2020 when he was discharged for unacceptable behaviour of filming a co-resident in breach of the service policy. On the evening of his discharge, he had a significant relapse, finding himself being awoken by the police in the car which he had illegally entered. He told the Tribunal that through his subsequent rehabilitation he had successfully developed tools to manage the internal feelings that led to his drug use. He described developing tools that he continues to use including mindful meditation and box breathing. He told the Tribunal that his rehabilitation “worked”, and he is “not looking back”. He described having restarted his life with complete sobriety since that time. He describes his life now as a “proper adult life”. AM stated that he no longer associates with people who do drugs, and he does not like to spend time with them instead, he spends his time 27 BCS67, Exhibit 14. 28 NTP 147 29 NTP 18 30 BCS 62. -- 5 of 9 -- 6 with his partner, his own family and his partners family, whom he perceived as his support system. [27] His General Practitioner progress notes between 19 December 2019 and March 2020 reflect medical management around drug addiction recovery and mental health.31 His medical history post residential rehabilitation indicates ongoing therapeutic goals to remain substance free. Regular engagement with his General Practitioner around his mental health and monitoring throughout the medical notes from April 2020 to March 2022 reflect progress toward self-management.32 Witness evidence [28] JF was called as a witness for AM. She is his manager at his current workplace, a specialist health clinic. She indicated that she has known AM in a professional capacity at work, since August 2021. She said that she was aware that he had had a past drug problem, but there had not been much discussion about the details of this, and conversations had been in the context of him moving forward in life. She stated that she works with AM on a daily basis, and he displays no signs of being on drugs or using alcohol at any time in the time he has worked with her. She said that as a medical receptionist, she is familiar with people who are under the influence of drugs, and from her lived experience would expect an observable change in mood, behaviour. She said that his behaviour has never given her any reason to suspect drug or alcohol use and has never smelt alcohol on him. [29] JF stated that there was no indication that he was struggling with any mental health problems. She described him as a hard-working employee, and highly regarded member of the clinic’s team. [30] PT had lived with AM and his partner, (PT’s son), for approximately 12 months last year. He stated he had observed him over a two-year period to be respectful and helpful. 33He indicated that he was aware that AM had drug issues in his younger years but indicated that he did not have much detail around this and was not aware of any criminal offences. [31] He said alcohol had been a challenge for AM but that he “seemed to be on top of it”, and although he had struggled with mental health in the past, was “managing this now”. He recognised a genuine attempt to remedy problems of the past and held no concerns about him working with children. [32] TT is AM’s partner’s mother, and PT’s wife, who also lived with AM for approximately 12 months. She said she sees him twice a week in person and they talk every other day. She noted that AM and their son drop in to visited them regularly. TT said that AM spends most of his time with his partner and his own family members. TT said that she was aware that he had drug and alcohol issues in his teenage years but was not aware of more recent issues. She was aware that he had had a device in his car at some stage but was not aware of circumstances around it. She said that AM works in health and was proactive to take care of his mental health. [33] TM, AM’s mother, also gave evidence. She said that she has contact with AM a few times a week and sees him in person twice a month. She had been aware of his illicit 31 NTP 151-163. 32 NTP 146-151. 33 Reference filed 31 January 2022. -- 6 of 9 -- 7 drug use and alcohol use, and drink driving incident but not aware of criminal offence history related to this. [34] She said that he had grown out of what she saw as “teenage issues” that had affected him up to 2020. She said that she had not seen any signs of drug use since he had returned to Queensland. She identified herself as a paramedic and stated that she would be aware of then symptoms of drugs use which she sees daily in her work. She described AM as having turned his life around, and no longer associated with “unruly friends” of the past. Discussion [35] The respondent argues that AM’s criminal and substance abuse history demonstrates questions about his ability to model appropriate behaviours to children, assess and respond to another person’s behaviour and control his impulses, thereby being a questionable role model for children. They emphasise the 2019 incident where he stole his father’s car and crashed it while under the influence of alcohol as a prime example of his poor judgement and lack of consideration for others. I accept that this was the case prior to his rehabilitation, but the witness evidence before me supports a successful drug rehabilitation and change of lifestyle which no longer demonstrates these behaviours. [36] Referring to the case of RWH the suggest the behaviour provides conflicting messages to children: “It is confusing and harmful for children to be given conflicting messages about serious matters such as drug use and breaking the law. An adult’s tacit approval of drug use by their example may have the effect of normalising this conduct in the child’s impressionable mind.”34 [37] In these circumstances, there is no confusion or inconsistency in words and deed. AM acknowledges that his lifestyle was not one that would be a good role model for children. AM comments supported by his witnesses indicate that he has changed his life. His own evidence indicates that he has developed insight into his drug use, the causes of it, and has developed strategies around dealing with triggers to deterioration of his mental health related to drug use. His evidence suggests that he developed insight since his rehabilitation. [38] Insight is an important protective factor, recognised in Re TAA: “The issue of insight into the harm caused in 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 on others is less likely to re-offend 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 AM has acknowledged a connection with drugs and alcohol and his mental health, that he struggled with 34 RWH v Director General Department of Justice and Attorney General [2021] QCAT 407. -- 7 of 9 -- 8 his mental health,35 due to a series of traumatic events, at times prior to entry to rehabilitation being suicidal. [39] There is evidence that through rehabilitation, he has developed tools to manage this issue36, now has strong support system with whom he regularly engages, as well as greater stability in his social circumstances. These are protective factors. [40] The evidence of JK, PT and TM indicates that drugs and alcohol are no longer problematic in AM’s life. [41] Having regard to the s 226 WWC Act considerations, these drug related offences occurred prior to rehabilitation. Sentencing considerations at the time of the convictions reflect prospects of rehabilitation. [42] The Tribunal must act consistent with human rights. 37It cannot limit human rights unless it is reasonable and demonstrably justified38. The Tribunal must give consideration to any human rights that may be affected by the decision at hand when operating as a public entity 39as it is when it reviews a decision to issue a negative notice. In these circumstances, Human rights contained at sections 21, 23 and 36(2) of the Human Rights Act 2019 (Qld) –rights to privacy and reputation, to take part in public life, and to further vocational education and training, may be affected by a decision to issue a negative notice. Such rights may only be limited where it is reasonable and demonstrably justified.40 [43] These rights compete with children’s rights protected by the WWC Act, and the legislative framework makes clear that children’s rights to protection from harm and to be safely cared for take priority. In light of the evidence that indicates that AM has reformed his former lifestyle after a period of rehabilitation, and for the past two and a half years been rehabilitated from drug use, it is not reasonable to limit these rights. There is not any evidence that indicates that, since rehabilitation, he is a poor role model for children or engages in behaviour which is impulsive lawless or reckless. He acknowledges that his conduct prior to rehabilitation was not conducive to working with children. That conduct occurred in a period of youth, and prior to receiving successful therapeutic input. His witnesses confirm a change of lifestyle following rehabilitation. It would not be consistent with human rights to limit AM’s rights to privacy and reputation, to take part in public life, and to further vocational education and training protected by the Human Rights Act 2019 (Qld), where evidence indicates that he no longer demonstrates behaviour which makes him a poor role model for children. [44] The evidence indicates that in his current circumstances, his is not an exceptional case in which it is not in the best interests of children for him to be issued a blue card. [45] The decision that an exceptional case exists should be set aside and substituted with the Tribunal’s decision that this is not an exceptional case. [46] The decision of the Director-General, Department of Justice and Attorney-General made on 3 March 2021 that the applicant’s case is ‘exceptional’ within the meaning 35 Applicant Life History Page 3. 36 NTP 120-123. 37 Human Rights Act 2019 (Qld), s 8. 38 Ibid s 13. 39 Ibid, s10(1), s 58. 40 Human Rights Act 2019 (Qld) s 13. -- 8 of 9 -- 9 of s 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 the applicant’s case is not exceptional. [47] Tribunal considers it is not in the public interest to release identifying information regarding the applicant and any witnesses for the applicant. These reasons have been written in a de-identified format for this reason. Pursuant to s 66 of the QCAT Act the Tribunal orders that publication of information that may identify the applicant and witnesses is prohibited. -- 9 of 9 --