Davidson v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 367

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Davidson v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 367 PARTIES: TAMMY DAVIDSON (applicant) v DEPARTMENT OF SENIORS, DISABILITY SERVICES AND ABORIGINAL AND TORRES STRAIT ISLANDER PARTNERSHIPS (respondent) APPLICATION NO/S: GAR270-21 MATTER TYPE: General administrative review matters DELIVERED ON: 12 October 2022 HEARING DATE: 5 September 2022 HEARD AT: Brisbane DECISION OF: Member PG Stilgoe OAM ORDERS: The decision made on 27 July 2020 to issue a negative notice to Tammy Davidson is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether there were exceptional circumstances – where the applicant sought review of a decision by the respondent to issue a negative notice for a yellow card – where the applicant was previously a support worker for vulnerable adults – where the applicant was convicted of obtaining financial advantage – where the applicant was convicted of a serious offence – where the applicant had a gambling habit – where the tribunal held there were no exceptional circumstances Criminal Code Act 1995 (Cth), s 135.2 Disability Services Act 2006, s 40, s 42, s 91, Schedule 2 Disability Services and Other Legislation (Working Screening) Amendment Bill 2020 Disability Services Regulation 2007 Human Rights Act 2019, s 17, s 18 Queensland Civil and Administrative Tribunal Act 2009, s 19(a), s 20, s 32 SJ v Department of Communities (Disability Services) [2010] QCAT -- 1 of 8 -- 2 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: F Chen of Counsel, instructed by Crown Law REASONS FOR DECISION [1] Tammy Davidson was a support worker for vulnerable adults from 2015 to 2021. She loved her work and was valued and respected by her clients and peers. [2] In 2019, Ms Davidson wanted to be a paid employee with St. Vincent de Paul and Help a Friend. As she was required to do, Ms Davidson applied for an NDIS Worker Screening Clearance (a yellow card). The Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships issued a negative notice on 27 July 2020. [3] Ms Davidson was excluded from the industry she loved. She applied to the tribunal for a review of the department’s decision. Changes to the Disability Services Act 2006 (DS Act) resulted in some procedural hiccups, most of which are not relevant. Ms Davidson’s second application for review is now before me for determination. [4] In exercising the review jurisdiction of the tribunal, I must decide the review in accordance with the QCAT Act and the DS Act1 to produce the correct and preferable decision.2 This is a fresh hearing on its merits3 and my role is to stand in the shoes of the decision maker.4 Why did the department exclude Ms Davidson? [5] The department must issue an exclusion if it is aware that a person has a conviction for a serious offence and was an adult when the offence was committed.5 The department may issue the person a clearance if it satisfied there are exceptional circumstances such that the person does not pose an unacceptable risk of harm to people with disability.6 [6] Schedule 8 of the DS Act defines “serious offence” to include an offence against a provision of an Act of the Commonwealth prescribed by regulation. Schedule 2 of the Disability Services Regulation prescribes obtaining financial advantage from the Commonwealth7 as a serious offence. [7] On 11 August 2009, Ms Davidson was convicted of obtaining financial advantage relating to three counts of Centrelink fraud. No conviction was recorded but she was placed on recognisance, to be of good behaviour and ordered to repay the full amount. [8] On 5 November 2018, Ms Davidson was convicted of obtaining financial advantage by deception, an amount of approximately $62,000. The offending conduct occurred 1 Queensland Civil and Administrative Tribunal Act 2009 s 19(a) (‘QCAT Act’). 2 QCAT Act s 20. 3 QCAT Act s 20. 4 SJ v Department of Communities (Disability Services) [2010] QCAT (‘SJ Case’). 5 DS Act s 91(1), (2). 6 DS Act s 91(3). 7 Criminal Code Act 1995 (Cth) s 135.2 (‘Criminal Code’). -- 2 of 8 -- 3 over a six-year period from 2010 to 2017. Ms Davidson was sentenced to 2 years imprisonment, to be released after serving 3 months. She was ordered to pay reparations and to serve a good behaviour bond of 3 years. [9] If Ms Davidson is to have a yellow card, I must find that there are exceptional circumstances such that she does not pose an unacceptable risk of harm to people with disability. What are exceptional circumstances? [10] The DS Act does not define “exceptional circumstances”. [11] Part 5 of the DS Act sets out the regime for screening disability workers. The emphasis of this Part is whether the person poses an unacceptable risk of harm to people with disability.8 Section 41 states: The paramount consideration in making a decision under this part is the right of people with disability to live lives free from abuse, violence, neglect or exploitation, including financial abuse or exploitation. [12] When Ms Davidson first applied for a review of the exclusion notice, her offences did not fall within the definition of “serious offence”. The DS Act was amended in 2020, expanding the definition of serious offence to cover obtaining financial advantage. The explanatory memorandum to the amending Act noted that the “paramount consideration in undertaking worker screening is to ensure the rights of people with disability to live lives free from abuse, violence, neglect or exploitation, including abuse or exploitation’.9 Further, the amendment to the definition of “serious offence” applied clause 61(c) if the Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme (IGA). [13] The IGA relevantly states: B5. An applicant or holder of a clearance with a conviction… for offences leading to a presumed exclusion must be issued with an exclusion unless the NDIS worker screening unit is satisfied, based on all the information before them, that there are exceptional circumstances such that the person does not pose an unacceptable risk of harm to the people with disability. B6. Exceptional circumstances are those that the NDIS worker screening unit considers are unusual, uncommon or special, and result in NDIS worker screening unit being satisfied the person does not pose an unacceptable risk of harm to people with disability… [14] The question for me, therefore, is whether Ms Davidson’s circumstances are unusual, uncommon or special and result in me being satisfied that she does not pose an unacceptable risk of harm to people with disability. 8 DS Act s 40(a), (c). 9 Explanatory Note, Disability Services and Other Legislation (Working Screening) Amendment Bill 2020 25. -- 3 of 8 -- 4 [15] There is a precedent for the tribunal granting a yellow card in exceptional circumstances. The applicant in the SJ Case10 had a history of drug addiction, stealing, armed robbery, dishonestly obtaining property from others and possession of a knife in a public place.11 [16] The tribunal assumed that a risk was present. It weighed the risk against protective factors on the balance of probabilities and whether the applicant might cause harm to the best interests of people with a disability in the future. [17] The case is relevant only to articulate the framework for my decision. It is not appropriate to compare the facts of this case against the facts of that case as some sort of benchmark as to what might be exceptional circumstances. Are there exceptional circumstances? [18] What is the balance of risk against protective factors? Is there evidence that Ms Davidson might cause harm to people with a disability? What are the protective factors? [19] Ms Davidson has not reoffended since her conviction. Counsel for the department submits that this is because, until recently, the consequences of reoffending were significant; Ms Davidson would likely be returned to gaol. Of course, that’s the whole point of a good behaviour bond. [20] Ms Davidson has not reoffended in circumstances where she was working with vulnerable adults. She had access to cash in her clients’ homes12 and there was never any suggestion that Ms Davidson helped herself to that money. She accounted for every bit of clients’ money that she spent.13 Her supervisors and colleagues found her trustworthy.14 No one thought she would abuse her clients’ trust. Everyone told the tribunal that Ms Davidson was a dedicated and much-loved worker. [21] Ms Davidson has the support of several colleagues. Counsel for the department submits that I mut be cautious in accepting their evidence as they are all friends of Ms Davidson and are therefore likely to paint a positive picture. Counsel also submits that, in some cases, their evidence was given without a full understanding of Ms Davidson’s offending and the reasons for it. [22] Kerri-Anne Robbins, on being told that Ms Davidson was offending while working with her, was asked whether she still thought Ms Davidson was trustworthy. Ms Robbins said “no”.15 However, Ms Robbins went on to say that she did not think there was a risk Ms Davidson would financially abuse her clients.16 What are the risks? 10 SJ Case. 11 SJ Case [72]-[73], [81]. 12 T1-34, 10-22. 13 T1-34, 10-22. 14 T1-28, 32-41; T1-35, 35-40; T1-45, 4-7. 15 T1-42, 9-11. 16 T1-42, 25-31. -- 4 of 8 -- 5 [23] Counsel for the department identified a number of risk factors. It is necessary to deal with each of them. [24] Ms Davidson told the tribunal that the trigger for her offending was the need to pay her son’s private school fees. In fact, Ms Davidson was also gambling heavily. Counsel for the department identified Ms Davidson’s gambling as a trigger for reoffending. [25] About half the money Ms Davidson obtained by deception was used for gambling.17 Counsel for the department was critical of the fact that, even though she told her employers and colleagues of her conviction, Ms Davidson did not tell them about her gambling habit. Ms Davidson told the tribunal she thought telling people about her conviction was enough and that people didn’t need to know everything about her private life.18 [26] Counsel for the department pointed out that Ms Davidson has not received treatment for her gambling addiction. Ms Davidson received 6 free sessions with a psychologist on her release.19 She is working long hours so cannot find the time to engage with her Lifeline counsellor.20 [27] Counsel for the department noted that Ms Davidson is still gambling. Ms Davidson told the tribunal that she only gambles after all other bills are paid, she limits herself to $50 and she has given her key card to a friend so that she cannot access cash when she is gambling.21 Counsel for the department noted that Ms Davidson can access cash from the bank. That submission misses the point; it is not easy for Ms Davidson to access cash without her card and it is very difficult to do so in from a cash machine in a club. [28] Counsel identified Ms Davidson’s debt as a trigger for reoffending. Ms Davidson is still in debt to Centrelink and some payday loan providers. Her original debt to payday loan providers was somewhere around $50,000.22 She now owes $3000.23 She doesn’t know how much she owes Centrelink but notes that she is paying it off at $110/fortnight.24 As I observed during the hearing, if being in debt was a risk factor against a yellow card, most of Australia would be in the same position as Ms Davidson. [29] Counsel for the department submitted that Ms Davidson has a lax attitude towards her addiction. Counsel did not provide any additional evidence to support this submission but simply pointed to the fact that Ms Davidson did not seek treatment and still gambles. [30] Ms Davidson is taking medication for her depression. Ms Davidson is not receiving specialist treatment for her condition but is under the care of her family doctor. Counsel identified anxiety and depression as a trigger for Ms Davidson’s reoffending 17 T1-20, 35-39. 18 T1-74, 31-35. 19 T1-15, 24. 20 T1-15, 35-45. 21 T1-15, 26-34. 22 T1-21, 35-36. 23 T1-21, 29. 24 T1-20, 24-25. -- 5 of 8 -- 6 and expressed concern at the lack of specialist support. Counsel also submitted that the stress of working in the disability sector was a trigger for Ms Davidson’s reoffending. [31] There was no evidence that Ms Davidson’s gambling has been a problem since her release. The only evidence that Ms Davidson’s work has caused her stress was in a conversation with Rosemarie Weier, the CEO of Help a Friend Club and one of Ms Davidson’s employers. Ms Weier told the tribunal that Ms Davidson was anxious because she was being bullied by her fellow workers about her conviction.25 That might explain why Ms Davidson didn't tell everyone everything about her conviction. Even so, there is no evidence that Ms Davidson’s anxiety triggered a return to gambling nor is there any evidence that Ms Davidson’ anxiety led her to abuse any of her clients financially. [32] Counsel submits that Ms Davidson showed little insight into her offending. Counsel pointed to the fact that Ms Davidson thought that Centrelink fraud did not hurt anyone even though she was accessing a limited pool of money specifically directed to the support of vulnerable people and Ms Davidson’s actions had – possibly – denied funds to someone who was rightfully entitled. [33] Ms Davidson told the tribunal that she had never thought defrauding Centrelink was defrauding individual clients. I suspect that Ms Davidson’s approach reflects the community’s view. Indeed, until the passing of the amending Act, defrauding the Commonwealth was not considered a serious offence. It is still an outlier in the range of offences considered serious in that there is no obvious nexus between the act and the effect on a vulnerable person. For example, a conviction of fraud under the Criminal Code is only a serious offence if it was committed against, or in relation to the property of, a child or vulnerable person.26 [34] Counsel also pointed to the fact that she did not tell forensic psychologist Peter Perros about her gambling addiction.27 There is some force in that submission. [35] Counsel for the department noted that Ms Davidson’s offending occurred relatively recently and “exceptional circumstances to rebut the presumption of exclusion may include the Applicant demonstrating over several years that she has not re-offended”. The passing of time without further offending is one factor but, as Counsel herself pointed out “that might just mean that a person hasn’t been caught”. Conversely, a short time where a person has engaged in intensive therapy may be an exceptional circumstance. [36] Finally, Counsel submits that I should place little weight on Ms Davidson’s expression of remorse. Counsel points out that in 2016, while she was still offending, Ms Davidson expressed remorse for her first conviction.28 She also stated: ‘I have “turned my life around”, learning a big lesson from my lack of judgement during that period. I worked hard to ensure I repaid the monies 25 T1-56, 1-6. 26 Schedule 2, DS Act. 27 See report dated 1 November 2018, Respondent’s supplementary s 21 documents filed on 2 September 2022, document 1. 28 Letter dated 2 June 2016, Respondent’s s 21 documents filed on 5 August 2022, document 6. -- 6 of 8 -- 7 I owed to Centrelink within two years. Since 2008 I have continuously been in full-time or part-time employment.’ The Human Rights Act [37] I must apply the principles in the Human Rights Act (HR Act). Counsel has identified that the human rights principles and rights, so far as they relate to vulnerable people, are already incorporated into the DS Act.29 The application of the HR Act supports, but does not extend, the paramount consideration. [38] Section 34 of the HR Act states that a person must not be tried or punished more than once for an offence in relation to which the person has already been finally convicted or acquitted in accordance with law. The department’s decision to exclude Ms Davidson from holding a yellow card might seem like a second punishment for the same offence. In fact, however, it is the unfortunate consequence of applying the protective regime in the DS Act. Conclusion [39] When I weigh the risks against the protective factors, I am not persuaded that Ms Davidson represents an unacceptable risk of harm to people with disability. There is no evidence that she has ever subjected her clients to any risk of harm. There is no evidence that she has exploited her clients financially. There is no evidence that her anxiety and depression is not under control, despite a lack of formal supervision. There is no evidence that her gambling is not under control, despite a lack of formal supervision. Indeed, the evidence paints the opposite picture. But is that enough to make Ms Davidson’s circumstances exceptional? [40] There are three factors that may make Ms Davidson’s circumstances exceptional. The first is that she has worked in the disability sector for around five years without any suggestion that she has abused her clients financially. [41] The second is that Ms Davidson’s risk of offending is not a straight line from opportunity to action. The evidence shows that Ms Davidson offended because she gambled, and she gambled because she was anxious and depressed. The evidence shows that Ms Davidson’s anxiety and depression is under control, as is her gambling. [42] The third reason is that Ms Davidson’s previous offending was passive, in that she failed to report a change in her circumstances. There is no evidence that Ms Davidson ever wrongfully took money through a positive action, even though she had that opportunity. [43] Unfortunately, I have concluded that these three reasons are not enough. The test of exceptional circumstances is a deliberately high bar. It was made even higher in 2020 by the amendment to the regulations which made Centrelink fraud a disqualifying offence. [44] The DS Act screening applies despite the Criminal Law (Rehabilitation of Offenders) Act.30 That means that, for the purposes of the DS Act, an offence never goes away. No doubt for public policy reasons, defrauding Centrelink, an offence which has no direct connection to behaviour which would represent an unacceptable risk of harm to people with disability, is a serious offence. I cannot use the very nature of the offence 29 s 17 and s 18. 30 DS Act s 42. -- 7 of 8 -- 8 – a passive offending – as an exceptional circumstance in light of this very clear message from the legislation. [45] I understand that the department is, and should be, risk averse. It is vital that people are protected from predatory behaviour by workers within the industry. [46] Ms Davidson does not, and may never, have enough time or money to undertake the counselling expected of her. She is effectively lost to an industry crying out for dedicated workers and she is condemned to working long hours for less pay. Clients have lost the opportunity of having her support. Although my decision is the correct decision at law it is not a just decision. Order [47] The decision made on 27 July 2020 to issue a negative notice to Tammy Davidson is confirmed. -- 8 of 8 --