FBN v Director-General, Department of Justice and Attorney-General [2021] QCATA 112

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: FBN v Director-General, Department of Justice and Attorney-General [2021] QCATA 112 PARTIES: FBN (appellant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: APL245-20 ORIGINATING APPLICATION NO/S: CML048-20 MATTER TYPE: Appeals DELIVERED ON: 25 August 2021 HEARING DATE: 20 July 2021 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson (presiding) Member Gordon ORDERS: The appeal is dismissed. The publication of information that may identify the appellant is prohibited. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION – TRIBUNAL MISTAKEN OR MISLED – where decision of Blue Card Services that there was an ‘exceptional case’ confirmed – where the Tribunal found that there were risks should the appellant work with children – whether there was an ‘evidentiary basis’ for the finding – whether the Tribunal erred in determining that there was an exceptional case Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 Working With Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 221, s 226, s 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Director-General, Department of Justice and Attorney- General v CMH [2021] QCATA 6 Director-General, Department of Justice and Attorney- General v FRW [2020] QCATA 13 -- 1 of 10 -- 2 Director-General, Department of Justice and Attorney- General v PML [2021] QCATA 51 FBN v Director-General, Department of Justice and Attorney-General [2020] QCAT 260 APPEARANCES & REPRESENTATION: Appellant: Ruth O’Gorman instructed by Gilshenan & Luton Legal Practice Respondent: Carmel Borger, Advocacy Officer REASONS FOR DECISION [1] This is an appeal from a decision of the Tribunal upholding a decision of the respondent to issue a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’).1 [2] The applicable legislative provisions are outlined in the reasons for decision of the Tribunal at first instance. Since then there have been amendments, but it is common ground that as the appeal is on a point of law only, the Appeal Tribunal should also apply the law as it stood at the time of the decision at first instance.2 [3] In particular, the Member pointed out that the legislative provisions are to be administered under the principles 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.3 [4] The Member also pointed out that in a case such as that of FBN, where he had not been convicted of a ‘serious offence’ within the meaning of the Act,4 Blue Card Services must ordinarily issue a positive notice.5 However, if Blue Card Services and, in turn, the Tribunal on review are satisfied that there is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued, a negative notice must be issued instead.6 [5] The Member also noted that the review is a fresh hearing on the merits, with the aim of arriving at the correct and preferable decision.7 This meant that on review, the Member could consider material additional to that before Blue Card Services at the time of its decision. Of importance in the present case, this additional material came from FBN’s oral evidence given at the hearing. 1 FBN v Director-General, Department of Justice and Attorney-General [2020] QCAT 260. 2 Delivered on 15 July 2020. 3 FBN v Director-General, Department of Justice and Attorney-General [2020] QCAT 260, [9]; The Act, s 6, 360. 4 The Act, s 221(1)(c). 5 Ibid, s 221(1). 6 Ibid, 221(2). 7 FBN v Director-General, Department of Justice and Attorney-General [2020] QCAT 260, [12]. -- 2 of 10 -- 3 [6] In his written reasons, the Member recited FBN’s criminal history.8 There were two charges which were not prosecuted: a charge of being drunk and disorderly in licensed premises when he was aged 19 and, a year later, a charge allegedly arising from obstruction of a police officer. He had two convictions. One was at the age of 20 for possession of cannabis, and another in December 2018 at the age of 25 for possession of cannabis, a water pipe and digital scales. [7] The Member then considered FBN’s personal circumstances and the extent of his substance use, which included alcohol.9 He also recited FBN’s response to a hypothetical scenario which he had put to FBN on day 2 of the hearing, and recited other relevant evidence which had been given.10 [8] The Member made a number of findings which were favourable to FBN.11 He concluded that FBN had not been evasive in his answers to questions about his use of drugs, and that his evidence was frank and credible and given with impressive candour. On that basis the Member accepted FBN’s account of his upbringing, family, employment and studies, and about the frequency of his alcohol and drug use, and his participation in drug awareness sessions and counselling. [9] The Member considered that FBN did not have a generalised disregard for the law and social norms.12 Instead, he had demonstrated respect for the law. The Member concluded that there was no risk that FBN would encourage or turn a blind eye to drug use or other illegal activity by children. [10] However, having considered the material and evidence before the Tribunal and the submissions of each party, the Member decided that this was an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.13 [11] There were two risk factors, set out in paragraphs [59] and [60] of the reasons. The first was a risk of impaired judgement when working with children and the second was that children in his care (that is, students that he was teaching), might become aware of and be impacted by his drug use. [12] The appeal is made on the following grounds: Ground of appeal 1 The Member erred in concluding (at paragraph 59 of his Reasons) that there is a risk of the appellant having impaired judgement while working with children. Ground of appeal 2 The Member erred in not identifying how the risk of impaired judgement might negatively impact on the best interests of children. 8 Ibid, [13]-[19]. 9 FBN v Director-General, Department of Justice and Attorney-General [2020] QCAT 260, [20]-[33]. 10 Ibid, [34]-[39]. 11 Ibid, [43]-[45]. 12 Ibid, [47]. 13 Ibid, [61]. -- 3 of 10 -- 4 Ground of appeal 3 The Member erred in relying (at paragraph 60 of his Reasons) on a remote future hypothetical scenario, not founded in the evidence before him, as supporting his conclusion that he appellant’s is an exceptional case. Ground of appeal 4 In any event, the Member erred in taking the matters in paragraphs 59 and 60 of his Reasons into account as they are not considerations within section 226(2) of the Act and, in particular, are not matters relating to the commission of any of the offences. Ground of appeal 5 The Member erred in concluding that the appellant’s is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to him. [13] Although grounds of appeal 1 and 2 were taken together at the appeal hearing, we deal with them separately as their resolution involves different principles. [14] For ground 1 of appeal, it was submitted on FBN’s behalf that the Member was in error in concluding that there was a risk of FBN having impaired judgement while working with children. As part of the submission it was pointed out that FBN’s use of cannabis had never been in the proximity of children or when children were in his care. The evidence which did exist of his work with children showed that simply would not happen. And the Member had found that FBN would not encourage children to use drugs, and that he would not use drugs in front of them,14 nor would he turn a blind eye to drug use or other illegal activity by children.15 So, it was submitted, there was no evidentiary basis for a finding that there was a risk of impaired judgement while working with children in the future. [15] However, the Member did find that a future relapse into increased cannabis use, particularly at times of stress, could not be ruled out as fanciful.16 As the Member put it:17 Greater confidence in FBN’s resolve to lastingly put cannabis behind him could only come after some sustained period of abstinence, perhaps coupled with a psychological or similar assessment. [16] Also, at paragraph [59] of the reasons it is stated: FBN, however, was not merely an occasional user. He used quite frequently over several years. Even after the 2018 charges, he continued to use occasionally. FBN has a supportive family, and he has been prepared to seek professional assistance in times of need. However, those factors were also present in the past when he chose to use drugs. It may be that now, facing the real risk of his career plans being halted or at least delayed, he can and will stick to a resolve to discontinue use. He may be able to do this without ongoing 14 FBN v Director-General, Department of Justice and Attorney-General [2020] QCAT 260, [59]. 15 Ibid, [47] . 16 Ibid, [48]. 17 Ibid. -- 4 of 10 -- 5 counselling. However, until such time as he has demonstrated sustained abstinence, the risk remains of relapse into heavier use. [17] Although not expressly stated by the Member, it does appear from his reasons that he was concerned that the ‘heavier use’ into which FBN could relapse could be similar to his past drug use. As the Member pointed out at paragraph [27] of his reasons, there had been times in the past when FBN was using cannabis two or three times a week and there had been some weeks when he used up to five times a week. If FBN did relapse into such consumption, then, unless he worked with children only infrequently, it would be inevitable that he would be using cannabis when he would be working with children the next day. [18] Despite this, it is suggested in this ground of appeal that the ‘evidentiary basis’ of a risk of impaired judgement was lacking. The precise nature of the evidence which the Tribunal would require, before it could find that using cannabis affected cognitive functions the following day, was not stated. It was not suggested that the Tribunal required medical evidence about the effect of cannabis in varying quantities before a work day, or even a lay person’s view about this, merely that the evidentiary basis for the finding made by the Member was lacking. [19] To counter this argument, on the appeal it was submitted on behalf of Blue Card Services that FBN himself gave evidence about the possible effect of cannabis on his cognitive functions. This was when, on two occasions in his evidence, he explained that he would not have been able to achieve certain results during the day had he been using cannabis.18 The Member took the same view.19 [20] In oral submissions at the appeal hearing, Blue Card Services also pointed out that there was certain material before the Member from the police which tended to show what can happen when people take drugs, and what appeared to have happened to FBN when he did so. This came from what the police witnessed when they visited FBN’s residence in 2013. They found him in possession of cannabis and said that he was acting in a way consistent with being under the influence of a drug – with rapid and severe mood swings, animated body language and contracted pupils, and that he was acting irrationally, repeating himself, and shouting at officers intermittently.20 [21] In the light of this evidence given by FBN and the other material before the Tribunal, there was sufficient evidence before the Member to make a finding that upon a relapse by FBN into heavier drug use there was a risk of his impaired judgment when working with children. [22] The possibility that the Tribunal might be able to make such a finding by judicial notice in the absence of any evidence to the contrary was canvassed during the appeal hearing, but there is no need for us to consider this in the light of this evidence given by FBN himself and the other material before the Tribunal. [23] Accordingly ground 1 of the appeal fails. [24] Ground 2 of appeal is that the Member failed to identify how any such impaired judgement might negatively impact the best interests of children, but was enlarged in submissions to contend that there was no evidentiary basis for a conclusion that any 18 Respondent’s Outline of Submissions, [44], [46]. 19 FBN v Director-General, Department of Justice and Attorney-General [2020] QCAT 260, [37]. 20 Appellant’s Appeal Book, BCS-18; put to FBN in cross examination at Transcript 1-75. -- 5 of 10 -- 6 such impaired judgement would expose children to harm. It was pointed out in oral submissions in support, that the probability is that teachers do sometimes have a night out, but do not allow this to affect the quality of their teaching or to be damaging to the best interests of children. [25] In relation to the identification of how any impaired judgment might negatively impact children, at paragraph [57] of his reasons, the Member observed: Drunkenness, disorderliness, and illicit drug use, especially heavy drug use, can have relevance to child-related employment, as articulated by Mr Taylor. [26] Also, at paragraph [53] of the reasons it is stated: FBN’s offending includes recent offences, but he has used drugs much more than his criminal history indicates. His drug offending has continued even after the 2018 offences. FBN has previously said that he had stopped using drugs, but he then returned to using them. There is no evidence of successful treatment preventing relapse. Children have the right not to be exposed to drugs and to be cared for by people whose judgment is not impaired by drugs. A person who uses drugs is an inappropriate role model for children. The Tribunal observed in CW v Chief Executive, Public Safety Business Agency that it can be harmful for children to become aware that people whom they respect do not obey the law. This is confusing for children as they try to develop a sense of right and wrong. [27] Further, at paragraph [51], with reference to a submission by Mr Taylor for Blue Card Services: Blue Card holders occupy a position of trust and authority over children, who are reliant on their judgment. Children have a right to be cared for in a way that promotes their wellbeing. [28] Also, at paragraph [60] of the reasons: Further, I am mindful that a blue card would enable work in any child-related field in any place in Queensland. FBN could, for example, work in a small community. If drug use by FBN– even if only a one-off instance of recreational consumption in that community – was discovered by police, it is likely that he would be charged and that his offending would become well-known within the community including to some of the children in his care. [29] As is noted above, it was also submitted that there was no evidentiary basis for a conclusion that any such impaired judgement would expose children to harm. However, in Director-General, Department of Justice and Attorney-General v CMH,21 having pointed out that that such proceedings are not adversarial and the Tribunal is not bound by the rules of evidence,22 the Appeal Tribunal distinguished between those findings for which evidence would be required and the assessment of what then follows from those findings. It said at [16]: Further, the relevant question in the present case is whether the Tribunal, standing in the shoes of the Chief Executive, is satisfied that it is an ‘exceptional case’. If the chief executive is so satisfied, then a negative notice must be issued to the 21 [2021] QCATA 6. 22 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3). -- 6 of 10 -- 7 person. To the extent that it is necessary to make findings in relation to past conduct, the Tribunal might consider evidentiary principles and take into account the considerations outlined in Briginshaw. However, the ultimate question of what is in the best interests of children does not lend itself to exact proof. It involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and of potential future risks to children. [30] That analysis discloses a two stage process. In the first stage, the relevant facts and circumstances are found. The risks of future events which might be deleterious are identified. These are sometimes called the risk factors. And those circumstances which might reduce those risks are also identified. These are sometimes called the protective factors. [31] The second stage is to complete the task set by section 221(2); that is, to decide, in the light of the findings in the first stage, and in the context of the objectives of the Act,23 whether it was an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. As said in CMH, this is largely an evaluative exercise rather than a fact-finding exercise, which does not lend itself to exact proof, and which involves a degree of speculation and assessment of risk.24 [32] No error has been demonstrated. The risks were identified and it was open to the Member, in exercising an evaluative judgment, to draw the conclusion that is was an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. Ground 2 of the appeal fails. [33] Ground 3 of appeal suggests that the Member was wrong in paragraph [60] of his reasons to rely on a remote future hypothetical scenario. Again it is said there was no evidentiary basis for the conclusion reached by the member. [34] In paragraph [60] of the reasons, the Member expressed concern that children with whom FBN could be working might discover that he is a drug user. The Member expressed that concern by envisaging a scenario in which FBN might be working with children in a small community and, if his drug taking were discovered by police, he would likely be charged. Hence his offending would become well known in the community, including to some of the children in his care. [35] It is clear that the member, in making an evaluative judgment, was only giving the scenario as a possible example of what might happen. The real concern here was children discovering that he used illicit drugs, seriously damaging any attempts by him to be a good role model or a corrective influence when it comes to drugs or anti- social or criminal behaviour. [36] In choosing to give an example of how children might find out about FBN’s drug use the Member could have used a number of possible scenarios. The example given was simply part of the evaluative process as to risk, based on prior conduct, undertaken by the Member. 23 In particular, the principle that the welfare and best interests of a child is paramount: the Act, s 6, s 360. 24 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [16], [19]. In Director-General, Department of Justice and Attorney-General v FRW [2020] QCATA 13, [38]- [41] it was suggested that it may be wrong to describe this as a ‘balancing of the risk and protective factors’. -- 7 of 10 -- 8 [37] Ground 3 of the appeal fails. [38] In ground of appeal 4 it is said that the Member was wrong to take into account the matters set out in paragraphs [59] (the risk of impaired judgement) and [60] (students discovering his drug use) at all. It is said in the written submissions that the reason why they could not be taken into account was that they are not matters which arise for consideration within section 226(2) of the Act. [39] Section 226(2) of the Act sets out matters which must be considered where the chief executive is aware that the person has been convicted of or charged with an offence. Section 226(2)(e) of the Act, using the paragraph numbers in the version which applied at the time of the hearing, provides that the chief executive (and in turn, on review, the Tribunal) must have regard to ‘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’. [40] On paper, the submission appears to be that section 226 contains an exclusive list of the matters the decision maker may take into account where the person has been convicted of or charged with an offence. Therefore, since the risks of impaired judgement and of students discovering drug use are not listed in section 226, or within section 226(2)(e), they cannot be considered at all. [41] This ‘exclusivity argument’ was raised on FBN’s behalf at the commencement of the hearing before the Member, but was not pursued in final submissions before him. For this reason, at the appeal hearing the Appeal Tribunal asked Ms O’Gorman whether or not this was the exclusivity argument. Ms O’Gorman confirmed that it was not the exclusivity argument, but merely a restatement of the argument that the risks of impaired judgement and of students discovering drug use were insufficiently serious to result in a finding that there was an exceptional case. [42] As such, this is not properly a separate ground of appeal distinct from ground 5 and the submission is considered in that context. [43] In ground of appeal 5 it is said that the Member erred in finding that there was an exceptional case. In support, it is said that such a finding can only be made by reference to a Blue Card applicant’s criminal history and since there is nothing in FBN’s criminal history which has any demonstrated relevance to employment involving children, the criminal history is not relevant. Hence nothing displaces the normal rule that a positive notice should be issued. It is also said that no reasonable tribunal could come to the conclusion made by the Member. [44] There are two difficulties with this ground of appeal. The first is that its premise (about the relevance of the criminal history) is incorrect. The Tribunal’s task is set out in section 221(2). It is to decide whether it is an exceptional case in which it would not be in the best interest of children for there to be a positive notice. [45] It is true that in the terms of the Act which applied at the time of the hearing, section 221(2) is only engaged in certain circumstances of criminal history or where certain types of information have come to the attention of the Chief Executive.25 25 ‘Investigative information’ and ‘disciplinary information’. -- 8 of 10 -- 9 [46] In amendments having effect from 1 February 2021,26 and therefore which do not apply in this appeal, section 221(2) is also engaged when the Chief Executive is aware of other relevant information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person. [47] Here section 221(2) was engaged by FBN’s criminal history. The Tribunal’s task is then, in the words of the subsection, to decide whether it is an exceptional case in which it would not be in the best interest of children for there to be a positive notice. In deciding this, the Tribunal may take into account all of the circumstances. The Tribunal is not constrained to consider only the circumstances of the offences in the manner required by section 226.27 [48] This means that there was nothing wrong in principle for the Member to consider the risks of impaired judgement and of students discovering drug use. If these were considerations within section 226(2)(e) then they must be taken into account under that paragraph. If these were not considerations within section 226(2)(e) then they were rightly taken into account under section 221(2). It would be wrong to ignore such risks once section 221(2) is engaged, provided of course they are properly identified as risks on the evidence. To ignore such matters would be inconsistent with: (a) the object of the Act to provide a scheme to screen persons employed in particular employment or businesses to promote and protect the rights, interests and wellbeing of children and young people;28 and (b) the principles that the welfare and best interests of a child are paramount,29 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.30 [49] The second difficulty with this ground of appeal is that it is asking the Appeal Tribunal to interfere with the discretion of the Tribunal Member. It is not in dispute that when the Tribunal makes a decision about whether or not there is an exceptional case under section 221(2), it is exercising a discretion. [50] In such appeals, the Appeal Tribunal is subject to certain constraints. As stated in Director-General, Department of Justice and Attorney-General v PML:31 It is established law that DJAG, as the applicant, must identify some error in the exercise of the Tribunal’s broad discretion such that the Tribunal acted upon a wrong principle; or allowed extraneous or irrelevant matters to guide or affect him; made mistakes of facts; or did not take into account some material consideration. It is not enough that the Appeal Tribunal, had they been in the position of the Tribunal below, would have taken a different course. 26 Added by section 41 of the Disability Services and Other Legislation (Worker Screening) Amendment Act 2020. 27 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42], per Philippides J, with whom the other members of the Court agreed. 28 The Act, s 5. 29 Ibid, s 6(a), s 360. 30 Ibid, s 6(b). 31 [2021] QCATA 51, [16], citing House v King [1936] 55 CLR 499, 504. -- 9 of 10 -- 10 [51] The same point was made succinctly in Maher:32 Importantly, as was acknowledged by counsel for the Commissioner, this is not the occasion for a merits review of the decision of the Tribunal. It is therefore not appropriate in this appeal to review the evidence in order to determine whether a suitability notice ought to be issued. The body charged with jurisdiction to conduct a merits review was the Tribunal. [52] For the reasons outlined above, on the available material and evidence, the finding of the Tribunal at first instance was reasonably open. This ground of appeal also fails. Conclusion [53] As all of the grounds of appeal have been unsuccessful the appeal must be dismissed. [54] In paragraphs [62] to [66] of his reasons the Member considered whether a non- publication order should be made. We agree with the Member’s reasoning in this respect and continue the non-publication order in the same terms. 32 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [31]. -- 10 of 10 --