Bannister v Director-General, Department of Justice and Attorney-General [2018] QCAT 165

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bannister v Director-General, Department of Justice and Attorney-General [2018] QCAT 165 PARTIES: JONATHON ANDREW FREDRICK BANNISTER (applicant) v DIRECTOR- GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML 283-17 MATTER TYPE: Children’s matters DELIVERED ON: 11 May 2018 HEARING DATE: 1 May 2018 HEARD AT: Brisbane DECISION OF: Member Clifford ORDERS: That the decision of the Director-General, Department of Justice and Attorney-General dated 7 November 2017, that the applicant’s case is an exceptional case, is set aside and replaced by the Tribunal’s decision that the applicant’s case is not an exceptional case. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for review of decision – where respondent issued a negative notice – where blue card declined – where non-serious offence – whether an exceptional case FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRRITORY JURISDICTION AND LEGISTAION – OTHER MATTERS – application for review of decision – where respondent issued a negative notice – where blue card declined – where non-serious offence – whether an exceptional case Queensland Civil and Administrative Tribunal Act 2009 (Qld) Working with Children (Risk Management and Screening) Act 2000 (Qld) Commissioner for Children and Young People and Child -- 1 of 6 -- 2 Guardian v Maher & Anor [2004] QCA 492 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: I McCowie, Legal Officer REASONS FOR DECISION [1] The applicant, Jonathan Andrew Fredrick Bannister, is a 26 year old man who in September 2016 applied for a ‘Blue Card’ under the Working with Children (Risk Management and Screening) Act 2000 so that he could work with young people in his Personal Training business. The respondent, based on the applicant's criminal history and information provided by the applicant issued a negative notice being satisfied that the applicant’s case was an exceptional case and that issuing a positive notice and Blue Card was not in the best interest of children. On 5 December 2017 the applicant sought review of the decision with the Tribunal. Legal framework [2] The Working with Children (Risk Management and Screening) Act (Working with Children Act) prescribes reviewable decisions, outlines who may apply for review and what the Tribunal may or may not do in relation to the review.1 The Queensland Civil and Administrative Tribunal Act (QCAT Act) provides that when the Tribunal considers a review application, it hears the matters afresh and decides the matter on its merits. The purpose of the review is to produce the correct and preferable decision. The QCAT Act provides that the Tribunal may either confirm the decision or set it aside. 2 [3] When undertaking a review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. The principles for administering this law are 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 The Working with Children Act in essence establishes a management and screening process whereby a person wishing to work with children must obtain a ‘positive notice’ or as it is commonly referred a ‘Blue Card’ to do so. Police records are obtained and assessed. The applicant has an opportunity to reply to any police record. The law provides that applicants with non- serious convictions or charges are to be issued with a positive notice unless the Chief Executive Officer is satisfied that an exceptional case is made, in which it would not be in the best interest of children to issue a positive notice. [4] The Working with Children Act does not define what an exceptional case is, however, the Queensland Court of Appeal in the matter of Maher & Anor,4 provided guidance 1 Working with Children (Risk Management and Screening) Act 2000, ss 352 and 354. 2 Queensland Civil and Administrative Act 2009, sections 17 - 24. 3 Op.cit, Working with Children Act, sections 6 and 360. 4 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. -- 2 of 6 -- 3 when stating it is one that takes the case outside the normal rule and thus makes it an exceptional case. The Court also applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case-by-case basis and having regard to the statutory considerations. 5 Material and evidence [5] The Applicant provided the Tribunal with his application, personal story outlined in documents dated 27 December 2017, 26 March and 13 April 2018, Certificates of Attainment from Australian Institute of Fitness, Certificate IV Fitness, Master Trainer and Level 1 Metabolic Nutritionist. [6] The following witnesses also gave statements and appeared before the Tribunal either in person or by telephone: Dr Ghassion Abiad, General Practitioner, 22 December 2017, Wilhelmina Quinn-Leeman, psychologist, 12 December 2017, Andrew Bannister, father, 26 December 2017, Natalie Clarke, client/friend, 8 December 2017, Neta Schutze, Manager, Anytime Fitness, undated statement. [7] Angela Teasdale, Owner, Anytime Fitness, provided a statement dated 10 December 2017 and Marlene Vejrich, mother, provided a statement dated 12 April 2018, however neither appeared before the Tribunal. [8] The applicant was given the opportunity to exam and re-examine his witnesses, and he gave final oral submission. [9] The respondent provided Reasons for Decision with all relevant documents attached (BCS 1-52), and an Auscript transcript of proceeding containing sentencing remarks of Judge Baulch SC, dated 6 December 2013, (BCS 53-55). The respondent representative was given the opportunity to cross-examine the applicant’s witnesses, and gave final oral submissions. Issue – is the applicant’s case an exceptional case whereby the issuing of a positive notice would not be in the best interest of children? [10] It is undisputed that the applicant has neither a disqualifying or a serious offence as prescribed under the Working with Children Act. Furthermore, the Tribunal received no other information or reports in relation to the applicant as described under section 226(2) (b) (c) or (d) of that law. In the applicant’s case section 221 of the law is relevant to his circumstances. It prescribes that a positive notice must be issued unless it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to the applicant. [11] The applicant moved to Australia from Canada with his parents and sister when he was six years old. In his personal story he describes a relatively unsettled childhood in that the family moved very regularly given his father’s service and deployments with the Royal Australian Air Force. Around 2009 the applicant’s parents divorced, and it appears the applicant lived between parents over the next couple of years, then remaining to live with his girlfriend in Townsville around 2011 at age 20, when both 5 Op.cit, Working with Children Act section 226 (2). -- 3 of 6 -- 4 parents were living elsewhere. It is apparent that things did not go so well for the applicant following this period. He was working in security jobs and had started drinking and taking illicit drugs, in particular methyl amphetamine. Worked dropped off and the applicant found himself subject to various criminal charges (drug, property, weapon and dishonesty offences) over the course of 2012. (BCS 2,3, 14,15, 16.) In proceedings in 2012 the applicant was convicted on all charges and the convictions were variously recorded or not recorded, and the applicant fined small sums. [12] However, in the District Court in Townsville on 6 December 2013 the applicant was convicted of possession of, and supply of dangerous drugs, receiving or possessing property obtained from trafficking or supplying. The offences related to incidents in July 2012. The applicant was sentenced to 18 months and 4 months imprisonment, suspended for 3 years. Judge Baulch SC, in his sentencing remarks on 6 December 2013 (BCS53-55) noted that although the applicant was involved in a commercial supply and that that invariably results in actual imprisonment, His Honour stated Your case, though, is a rather special one, I think. You come from a good family and you have good family support. His Honour further commented on the applicant’s cooperation with police, and that the applicant provided most of the evidence that incriminated him. Judge Baulch also noted that the offending occurred against the background of addiction and means of funding that addiction. His Honour in suspending the sentences, stated that its reassuring to see that you have been able to break with this addiction and train and gain employment in the field in which you are trained. The references and material that’s handed to me from the rehabilitation centres persuade me that you are clear of drugs now and that it is unlikely that you will reoffend. [13] A few days latter the applicant appeared before the Townsville Magistrates Court for charges of receiving tainted property possession of utensils, possession of property suspected of being the proceeds of an offence under drugs misuse Act. These incidents related to June and September 2012. Again the applicant was convicted, with various outcomes including conviction recorded and fined $1,500. (BCS 2). [14] In 2015 the applicant was charged with wilful damage and public nuisance and breach of the suspended sentence imposed on 6 December 2013. In relation to the wilful damage matter the applicant was convicted, conviction recorded, order to pay restitution $900 and sentenced to 3 months imprisonment with parole release date on date of the hearing. In relation to the breach of suspended sentence, the breach was proven, suspended sentence partially invoked, conviction recorded and the applicant was sentenced to six months imprisonment, all terms to be served concurrently, and parole release date on the date of that hearing. The applicant admitted he had lapsed on this occasion and was under the influence of methyl amphetamine. The incident occurred in January 2015. Following this incident the applicant again participated in and completed a long-term rehabilitation program. At hearing the applicant testified he had not taken illicit substances since this time. [15] At hearing the applicant presented as a healthy but slightly nervous young man, casual in his communication and somewhat restless. However, he was clear and determined in his thoughts about staying on a positive path and had plans to start his own gym. The applicant testified that he was in a 2-year relationship with his girlfriend and that they were living with his mother to save money. The applicant outlined his support network and most of that network attended as witnesses to support his application. -- 4 of 6 -- 5 [16] Mr Andrew Bannister was resolutely supportive of his son, and testified he could quickly identify if his son was re-engaged with drugs because of changes in his communication. Ms Schutze and Ms Clarke both testified they were aware of the applicant’s drug offending history and both were strongly supportive of the applicant, and highlighted the positive work he had undertaken with Ms Clarke’s son who had autism. Both opined the applicant was a role model and posed no threat to children. [17] Dr Abiad, General Practitioner and Ms Quinn-Leeman, psychologist, are health professionals the applicant consulted following the 2015 incident. Dr Abiad testified that the applicant’s insight into his offending behaviour was not there initially and it was a difficult time, but he stated that as time went on the applicant gained insight and that he then improved as a person fully in tune with his mental health. Dr Abiad opined the applicant does not need on-going psychiatric support and opined that he is ‘GP manageable’. Dr Abiad testified that he refers some clients to the applicant for personal training. [18] Ms Quinn-Leeman disclosed that she was acquainted with the applicant’s parents and saw his mother from time to time. Ms Quinn-Leeman advised she had first seen the applicant professionally around 2007 when his parents separated. Ms Quinn-Leeman stated that she again saw the applicant, over a six-consultation period, after referral by his GP in 2016 for addiction issues. Ms Quinn-Leeman advised that she last saw the applicant around 6 weeks ago, which was a separate consultation. Ms Quinn-Leeman stated the applicant had made huge progress from being in a drug-induced psychosis, to being completely off drugs and developing his own business and enjoying a good relationship with partner and parents. [19] Whilst all the witnesses had some varying level of personal or business connection to the applicant that could impact their objectivity, the Tribunal found them all open and transparent and enthusiastic in their support of the applicant. None had concerns that the applicant posed a risk to the well being of children. [20] The respondent, in oral submissions, whilst acknowledging numerous protective factors attributable to the applicant including the support of family and friends, a stable relationship, the applicant’s commitment to his business, that he had completed 2 lengthy rehabilitation programs and had expressed some insight into the probability that he had ‘caused fear in others,’ the respondent also identified what it considered risks factors. These included a propensity to act in an offensive behaviour, relapse after a lengthy drug rehabilitation program against a background of strong family support and that insufficient time had passed since the last offending behaviour. [21] The applicant has a not insignificant criminal history. However, almost all offences are seemingly inter-related to a 12-month period during the height of the applicant’s drug addiction when he was around 21-22 years of age. Some people in similar circumstances may avoid criminal charges; some may become drug-free, with or without rehabilitation over shorter or longer periods. Some may not become drug-free. The applicant’s criminal history however is not unusual for a person in such circumstances. Whilst rehabilitation has occurred twice and over extended periods, it is on balance more a protective than a risk factor in the applicant’s case as he has completed a program, and after a reportedly one-off incident of lapse, quickly recommitted to getting back onto a positive pathway by completing a further period of rehabilitation. Furthermore the applicant testified that he has remained drug-free for -- 5 of 6 -- 6 over three years. This is not an insignificant period of time. And it is a time well spent. A time during which the applicant has coalesced a very supportive network on his path to good health and growing a business. [22] The Working with Children Act provides that a person not convicted of serious offence must be issued a positive unless it is an exceptional case in that it would not be in the best interest of children to issue the applicant a positive notice. [23] Whilst it is widely acknowledged that drug misuse and addiction can impact children and community negatively, in the applicant’s circumstances and in keeping with the structure and provisions of the law, the Tribunal is not persuaded that the applicant’s case is an exceptional case whereby it would not be in the best-interest of children for a positive notice to be issued. [24] The decision of the respondent should be set aside and replaced by the Tribunal’s decision, and orders accordingly. -- 6 of 6 --