CSG v Director General, Department of Justice and Attorney-General [2022] QCAT 412

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CSG v Director General, Department of Justice and Attorney-General [2022] QCAT 412 PARTIES: CSG (applicant) v DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERALCML (respondent) APPLICATION NO/S: CML079-21 MATTER TYPE: Childrens matters DELIVERED ON: 13 December 2022 HEARING DATE: 16 May 2022 HEARD AT: Brisbane DECISION OF: Member Davies ORDERS: 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 set aside and replaced with the Tribunal’s decision that there is no exceptional case. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND 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 sufficient time since offending – 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 -- 1 of 8 -- 2 Human Rights Act 2019 (Qld), s 23, s 25, s 26 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 221, s 226, s 353, s 360 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 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 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: J Capper Blue Card Services, Department of Justice and Attorney-General REASONS FOR DECISION Introduction [1] In July 2020 the Applicant (CSG) applied to the Department of Justice and Attorney- General for a working with children card. The issue of such a card, referred to as a Blue Card, is governed by the Working with Children (Risk Management and Screening) Act 2000 (WWC Act). CSG sought a Blue Card so that she could engage in paid employment. [2] The Respondent (Blue Card Services) assessed CSG’s application, including further oral submissions provided by CSG. As a result of that consideration, on 22 February 2021 Blue Card Services issued a negative notice under the WWC Act (the Negative Notice Decision). That is, Blue Card Services came to the view that an ‘exceptional case’ exists and that it would not be in the best interests of children for CSG to be issued with a Blue Card. [3] The issue of that negative notice prompted CSG to make an application to this Tribunal to review Blue Card Service’s decision that CSG’s case was an ‘exceptional case.’ In essence, CSG contends that her case is not ‘exceptional’ and, as a result, she should be able to hold a Blue Card. [4] For the reasons set out below, I consider that CSG’s situation is not exceptional. Legislative framework and role of Tribunal [5] The principal legislation, relevant to a review by this Tribunal of the Negative Notice Decision are the WWC Act – under which the Negative Notice Decision was made – and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) – under which the Tribunal exercises its review jurisdiction. [6] 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 -- 2 of 8 -- 3 development and implementation of risk management strategies and for the screening of persons.1 [7] The Negative Notice Decision is a reviewable decision under the WWC Act. Specifically, it is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act. [8] The purpose of a review by this Tribunal of the Negative Notice 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. [9] 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 Tribunal is, like the original decision maker, guided by the principles set out in the WWC Act. [10] 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 [11] The WWC Act provides, as a starting point, that a person in the position of the CSG, should be allowed to hold a blue card unless that person’s situation is an exceptional case. [12] Thus, in conducting this review of the Negative Notice Decision, the principal issue for determination is whether an ‘exceptional case’ exists. That is, whether CSG’s situation is such that it would not be in the best of children for a positive notice to be issued.5 [13] 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 exceptional case should be unhampered by any special meaning or interpretation.6 [14] In determining whether the Applicant’s circumstances constitute an exceptional case it is necessary to consider: (a) The principles for the administration of the WWC Act discussed above. (b) The matters that the WWC Act mandates must be considered. Relevantly, these matters are set out in ss 226(2) of the WWC Act. (c) Any other matters that are relevant to the decision.7 1 WWC Act s 5. 2 QCAT Act s 20(1). 3 QCAT Act s 20(2). 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]. -- 3 of 8 -- 4 [15] The Tribunal is required to determine whether an exceptional case exists after evaluating all the available evidence before it.8 In this matter, there was evidence before the Tribunal that was not before Blue Card Services when the Negative Notice Decision was made. [16] In addition, in a review such as this, the Tribunal is a ‘public entity’ and is therefore required to comply with s 58 of the Human Rights Act 2019 (Qld) (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 CSG include the right to privacy and reputation and the right to a fair hearing. 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. Do CSG’s circumstances constitute an ‘exceptional case’? [17] It is appropriate to turn first to the matters that the WWC Act, in s 226, mandates that the Tribunal have regard when deciding if an exceptional case exists. Those matters (the s 226 matters) are, in summary: (a) Whether the offences are convictions or charges (b) Whether the offences are serious or disqualifying offence (c) When the offences were committed (d) The nature of the offences and their relevance to employment or carrying on a business that involves or may involve children (e) In the case of a conviction – the penalty imposed by the court Summary of s 226 factors – charges and convictions [18] It is not in dispute that CSG has an extensive criminal history. She has approximately 84 convictions for a range of offences including drug offences, fraud, and other offences of dishonestly, stealing, burglary and receiving stolen or tainted property. [19] Despite this extensive criminal history, the offences that CSG has been convicted of are neither serious nor disqualifying offences under the WWC Act.9 Further, there is no evidence that CSG has been charged with convicted of an offence since 2011. [20] Nonetheless, the conduct that gave rise to the charges and convictions, are, in my view, of prime relevance to a consideration of whether CSG’s case is exceptional. This is because of the nature of the offences, the volume of the offences and the extended period over which the offences occurred. The offences in question were committed between 2000 and 2011. [21] As a result of being found guilty of the offences a range of penalties have been imposed on CSG. These penalties include fines, community-based orders, and terms 8 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19]. 9 Submissions of Blue Card Services (Exhibit 9) at 41. See also WWC Act Schedules 2 and 4. -- 4 of 8 -- 5 of imprisonment. In addition to the charges that CSG was convicted of, there were also a number of charges that did not result in convictions. [22] These mandatory s 226 factors need to be considered together with principles for the administration of the WWC Act and other relevant factors in coming to the correct and preferable decision. Evidence [23] CSG’s statements that were put into evidence consisted of her statement of evidence dated 6 January 2022 and two statutory declarations dated 4 July 2021 and 6 January 2022.10 [24] In addition, in respect of documentary evidence, CSG relied on a letter from a psychologist who she has consulted11 and a statement in the form of a statutory declaration from a former work colleague.12 Both the former work colleague and the psychologist gave oral evidence and were cross examined by the representative of Blue Card Services, as was CSG. [25] The documents put into evidence by Blue Card Services were the ‘Reasons’ document13 and related documents that concerned CSG’s criminal history including police reports, sentencing remarks and related information. After the initiation of this proceeding, Blue Card Services sought and obtained further documents from the (Queensland) Department of Children, Youth Justice and Multicultural Affairs and Queensland Corrective Services.14 The bulk of the notice to produce (NTP) documents concerned CSG’s interaction with Queensland Corrective Services. Discussion [26] Persistent offending, particularly offending that involved drug use and dishonesty over an extended period, does raise serious questions as to whether it is in the best interests of children for CSG to hold a Blue Card. [27] In her both her statements and in her oral evidence, CSG showed frankness in addressing her lengthy and extensive criminal history. [28] CSG maintains that her offences and charges, other than her drug offences, were tied to her drug addiction. That is, CSG contends that her non-drug crimes such as fraud and burglary were a means of obtaining funds to support her drug addiction. CSG says further that her crimes in support of her drug addiction were not crimes of violence. [29] CSG attributes her lack of convictions since 2011 as being a result of conquering her drug addiction. In this regard, CSG says that being within the supervision of the Drug Court and being subject to intensive drug rehabilitation orders has assisted her progress toward breaking her drug habit. CSG readily concedes that she struggled to stay ‘clean’ and that her ability to free herself of addiction was not without difficulty and relapses. In this regard CSG admits that she used drugs whilst she was pregnant with her first child and for some years afterward. However, she now appears to be genuinely remorseful for this conduct and maintains that her eldest child was not in 10 Exhibits 4, 5 and 6. 11 Exhibit 7. 12 Exhibit 8. 13 That is the document that outlines why Blue Card Services issued a negative notice. 14 Exhibit 9 the documents produced as a result of notices to produce. -- 5 of 8 -- 6 her care whilst she was actively using drugs. CSG’s second child was born in 2012. This was at a time that CSG says she was no longer addicted to drugs. [30] CSG also says that her experience of drug addiction and subsequently turning her life around gives her an insight into the difficulties faced by others who find themselves in the situation that she was in. Indeed, she considers that her knowledge could be useful in assisting others who are in a similar situation. [31] In addition to these matters, CSG points to factors that have provided her with stability and support. These include having regular employment, particularly with her present employer and the assistance that she has received from sessions with psychologists. [32] CSG’s other witness were a psychologist who she had consulted in 2021 under a mental health treatment plan and a former work colleague who had supervised CSG’s work for some years. [33] In respect of the psychologist, his involvement with CSG only commenced about a decade after CSG says she stopped using illicit drugs. As a result, drug use was not a focus of his treatment. Rather, his treatment of CSG was in the context of her feelings of stress following a relationship breakdown. [34] The evidence of this psychologist was that he was aware of CSG’s use of illicit substances and that he had been provided with a copy of the Blue Card Services ‘Reasons’ document. He said that to late December 2021 CSG had attended some seventeen sessions and had engaged well in therapy. Further, his evidence was that CSG presents with good insights into the benefits of ongoing mental health support, has a positive support network and that she was motivated to maintain the changes that she had made to her life in order to maintain a pro-social lifestyle. In his oral evidence the psychologist said that CSG had insight into the impact that her drug use and anti-social behaviour had on others. [35] CSG’s other witness, who gave oral evidence, was a former work colleague who has known the applicant for about 12 years. Her evidence was that she had read the ‘Reasons’ document prepared by Blue Card Services. This witness says that she witnessed a positive transformation of CSG over the years that she has known her. This witness says her friendship with CSG developed out of their working relationship. Although she and CSG are now no longer work colleagues, a friendship subsists and that their respective daughters were also in close contact. In this regard this witness says that and that she had no hesitation in entrusting CSG with the occasional care and supervision of her daughter – something that she said that she would not do if she considered her daughter would be in any danger. Relevantly this witness says that in the time that she has known CSG the applicant has gone through difficult times emotionally but not once has she seen CSG go back to her past destructive behaviours. [36] In its submissions, Blue Card Services helpfully sets out the statutory context in which my decision must be made and appropriately emphasises that the question of whether CSG’s case is exceptional involves a consideration of what is in the best interest of children. [37] In addressing CSG’s criminal history, including the s 226 matters, Blue Card Services correctly make the point that in addition to the extensive list of convictions, it is also necessary to have regard to the charges that did not result in a conviction in considering the welfare and best interest of children. -- 6 of 8 -- 7 [38] As to CSG’s criminal history generally, Blue Card Services, in its submissions, highlight aspects of her offending that have relevance to the welfare of children. Blue Card Services submit that CSG’s conduct suggest a general disrespect for authority and a tendency toward criminality and that her persistent offending raises concerns about her ability to judge appropriate behaviour and present as a positive role model. Blue Card Services also submit that the evidence suggests that CSG does not possess insight into the harm that her fraud and property crimes caused to those who were affected by her criminal activities. [39] Further, Blue Card Services submit that CSG’s offending may have been greater than that reflected in her criminal history and that the absence of charges or convictions since 2011 does not necessarily mean that the CSG has not resorted to drug use in the last decade or so. [40] In ensuring that the Tribunal is aware of all relevant factors, Blue Card Services obtained (and questioned CSG about) material obtained from the Department of Children, Youth Justice and Multicultural Affairs regarding a notification, in June 2021, to Child Safety, of concerns for CSG’s two children. In summary, Child Safety concluded that CSG’s eldest child, who was the focus of the Child Safety investigation, did not appear to be at an unacceptable risk of harm. [41] Nonetheless it is apparent from all the evidence, and relevant to a consideration of whether CSG’s case is exceptional, is that earlier in his life her eldest child had been exposed to what I consider to be an unacceptable risk of harm. This child, who was born in 2005, has principally resided with CSG during his life. In the period from 2005 – 2011, during this child’s formative years, CSG was charged with numerous offences including producing dangerous drugs,15 possessing dangerous drugs, the failure to take reasonable care and precaution in respect of a syringe or needle and various offences involving fraud and dishonesty. This was clearly a situation where CSG did not give paramount consideration to the welfare and best interests of her own child. [42] Is CSG’s case exceptional so that it would not be in the best interests of children to allow CSG to hold a Blue Card? [43] CSG’s lengthy and extensive criminal history, considered in isolation, does suggest that her case is exceptional. Does the length of time and her conduct since her last conviction alter this position? As submitted by Blue Card Services, the absence of charges or convictions since 2011 is not, of itself, probative evidence that CSG has not engaged in criminal activity since 2011. [44] Further, the absence of charges and convictions since 2011 may simply mean that CSG’s conduct now aligns with the behaviour that every community member is expected to engage in. [45] Nonetheless, the length of time without conviction when considered in the context of the evidence of her psychologist and the character evidence of her friend and former work colleague do suggest that CSG’s life now is manifestly different from the life that she led in the period 2000 to 2011. 15 CSG was not convicted on this charge. -- 7 of 8 -- 8 Human Rights Act [46] There are, in this matter, several competing human rights relevant to the outcome of this application. For CSG the human rights include her right to privacy and reputation16 and her right to take part in public life.17 In respect of children the HRA provides that it is the right of every child to the protection that is needed by the child, and it is in the child’s best interest because of being a child.18 Conclusion [47] As stated, the paramount consideration for my decision is the welfare and best interests of children. I consider that CSG has, since 2011, turned her life around and that the years since 2011 provide a stark contrast to her conduct in the first decade of this century. The evidence of the psychologist called by CSG supports the proposition that CSG’s employment and support network now promote her pro-social lifestyle. I have concluded that CSG’s case is now not exceptional. De-identification order [48] The QCAT Act, in s 66, gives me the discretion to make an order prohibiting the publication of any information that may enable a person, who has appeared before the Tribunal or is affected by a proceeding, to be identified. The prospect of such an order was canvassed with the parties and both parties considered that a de-identification order was appropriate. Having considered the matter and having regard to the potential consequences for CSG and for her children of being identified, I consider a non- publication or de-identification order is appropriate as the publication of CSG’s identity, and thus of her children, would be contrary to the public interest. 16 HRA s 25. 17 HRA s 23. 18 HRA s 26. -- 8 of 8 --