AD v Director-General, Blue Card Services, Justices Services, Department of Justice and Attorney-General [2017] QCAT 99

CITATION: AD v Director-General, Blue Card Services, Justices Services, Department of Justice and Attorney-General [2017] QCAT 99 PARTIES: AD (Applicant) v Director-General, Blue Card Services, Justices Services, Department of Justice and Attorney- General (Respondent) APPLICATION NUMBER: CML 182-16 MATTER TYPE: Childrens Matters HEARING DATE: 7 February 2017 HEARD AT: Brisbane DECISION OF: Member Traves DELIVERED ON: 6 April 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Director-General, Department of Justice and Attorney- General made on 13 June 2016 that this is an “exceptional case” 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: REVIEW JURISDICTION – BLUE CARD – charge of offence of public nuisance and obstructing a police officer – incident giving rise to charges caused by untreated mental illness - - prosecution discontinued - whether an “exceptional case” warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). -- 1 of 12 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 162, s 167, s 169, s 221, s 222, s 223, s 225, s 226, s 260, s 353, s 354, s 358, s 360 AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 Baker v The Queen (2004) 223 CLR 513 Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 491 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 D and Department for Community Development [2007] WASAT 154 Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153 Kent v Wilson [2000] VSC 98 Lu v Chief Executive Officer, Department for Child Protection [2013] WASAT 69 R v Gaw [2015] QCA 166 APPEARANCES: APPLICANT: Mr Jarrod Bell of NR Barbi Solicitor Pty Ltd appeared for the applicant RESPONDENT: Mr Ian McCowie represented the Director- General, Blue Card Services, Justices Services, Department of Justice and Attorney-General (Respondent) REASONS FOR DECISION Introduction [1] This is an application for review of a decision by the Chief Executive, Blue Card Services to issue a negative notice in respect of the application by AD for a blue card. [2] AD was charged with a number of offences arising out of an incident at a shopping plaza on 23 May 2015. The incidents involved AD harassing other shoppers by approaching them close to their faces and saying inappropriate -- 2 of 12 -- 3 things to them. She had also been reported grabbing at men in the genital region. When the police arrived, AD tried to take back her driver’s licence from police and then kicked one officer in the shin. [3] AD was charged with committing a public nuisance and with two charges of assaulting or obstructing a police officer. Because AD had mental health issues at the time of the incident, the prosecution discontinued proceedings and instead issued infringement notices which have been duly paid. [4] At the time of the incident AD was experiencing a psychotic episode. After the date of the incident AD was placed under an Involuntary Treatment Order at the Nambour Hospital. [5] AD has previously held a blue card. She is healthy and fit and enjoys swimming and lifesaving. She has previously worked in a summer camp in the United States and as a personal fitness trainer and yoga instructor. [6] AD applied for a blue card principally so that she could continue her surf lifesaving activities. A negative notice was issued on 13 June 2016. [7] In short, where a person has been charged with 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 [8] In this case the chief executive was satisfied that the case was exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act). [9] The issue is whether on the basis of the circumstances and nature of the incident that gave rise to the charges and in light of the other factors in s 226(2) this is an exceptional case in which it would not be in the best interests of children for AD to be issued a positive notice and blue card. The background to the application for review [10] Employment screening for child-related employment is dealt with in chapter 8 of the Act. AD made a prescribed notice application under the Act with a view to obtaining a blue card which she needs to be able to continue her life saving activities. [11] Blue Card Services refused AD’s application by issuing a negative notice on 13 June 2016. AD has applied to the Tribunal for a review of that decision. A person who is not a disqualified person2 is entitled to apply for review of a “chapter 8 reviewable decision” within 28 days.3 This includes a 1 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2). 2 Working with Children Act, s 169. 3 Working with Children Act, s 354(1). -- 3 of 12 -- 4 decision as to whether or not there is an exceptional case if, because of the decision, a negative notice was issued.4 [12] The Tribunal is to decide the review in accordance with the Act and the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act). The Tribunal has all the functions of the decision-maker for the decision being reviewed.5 [13] The purpose of the review is to produce the correct and preferable decision. In meeting that purpose the Tribunal must hear and decide the review by way of a fresh hearing on the merits.6 [14] AD is not a disqualified person and applied for review within the prescribed period. The “blue card” legislative framework [15] The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.7 It is protective legislation and has been described as “precautionary” in its approach. [16] A child related employment decision8 is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.9 The overriding concern is the potential for future harm to children. [17] The Act deals with “blue card” applications in two broad categories: (a) Where a blue card must be issued 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 blue card to be issued;10 and (b) Where a blue card must not be issued unless the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for a blue card to be issued.11 [18] The first category applies here. The relevant test is set out in ss 221(1)(b)(iii) and 221(2). [19] Section 221 provides, relevantly: (1) Subject to subsection (2), the chief executive must issue a positive notice to the person if — 4 Working with Children Act, s 353(a)(i). 5 Queensland Civil and Administrative Act 2009 (Qld), s 19. 6 Queensland Civil and Administrative Act 2009 (Qld), s 20. 7 Working with Children Act, s 5. 8 Child related employment decision is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358. 9 Working with Children Act, s 360. See also s 6. 10 Working with Children Act, s 221. 11 Working with Children Act, s 225. -- 4 of 12 -- 5 (a) … (b) the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person- (i)… (ii)… (iii) a charge for an offence other than a disqualifying offence; (2) If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. [Emphasis added.] [20] A negative notice was issued on the basis that, although AD had been charged with an offence other than a serious offence, the chief executive was satisfied that hers was an exceptional case within the meaning of s 221(2). What are the requirements for an exceptional case in which it would not be in the best interests of children for a positive notice to be issued [21] There is no legislative guarantee that a person charged with an offence other than a serious offence will be given a blue card. Although this is the default position, there is a power conferred on the chief executive to depart from the general rule where the chief executive is satisfied an “exceptional case” exists in which it would not be in the best interests of children for this to occur. [22] This necessarily requires an evaluation of the risk or degree of risk that the applicant would harm the best interests of children in the course of carrying out child-related work. If the Tribunal is satisfied that the case is an exceptional one in which it would not be in the best interests of children for a positive notice to be issued, the Tribunal must give a negative notice to the applicant.12 What does “exceptional case” mean? [23] Exceptional case is defined in Schedule 7 to mean “exceptional case as mentioned in section 221(2), 222(2), 223(4) or 225(2)”.13 [24] Whether a case is exceptional is a matter of discretion and there is a reluctance to lay down any general rule as to what is an exceptional case.14 In applying the discretion the factors in s 226 (2) must be considered. 12 Working with Children Act, s 221(2). 13 Working with Children Act, s 3. 14 Maher at [34] citing Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1. -- 5 of 12 -- 6 [25] What constitutes an exceptional case or, in the context of equivalent legislation in other States, exceptional circumstances, has been considered by the courts and Tribunals on numerous occasions. [26] The Oxford English Dictionary (2nd ed, Clarendon Press, Oxford) defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special.' [27] In Baker v The Queen15 Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward)16 to the application of 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said: We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. [28] The expression “exceptional case” must be read in its statutory context. The purpose of the legislation is to protect children by preventing people from working with children where this would not be in their best interests. [29] The intent of the specific provision is to make it the usual case that someone who is charged with an offence that is not a serious offence will be issued with a blue card.17 It is only where the case is exceptional in which it would not be in the best interests of children that a blue card is to be refused. The mandatory factors [30] In deciding whether it is an exceptional case in circumstances where the applicant has been convicted of or charged with an offence, the Tribunal is obliged to consider the factors in s 226 (2). These factors are not exhaustive18 and will not necessarily be given equal weight in the evaluative exercise to be undertaken. What weight is accorded to each factor will depend upon the facts and circumstances of the particular case. 15 [2004] HCA 45; (2004) 223 CLR 513 at 573 cited in D and Department for Community Development [2007] WASAT 154. 16 [1999] UKHL4; [2000] QB 198 at 208. 17 See further Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [46] where it was held: “The proper inference to draw from the Commission Act must be that it would harm the best interests of children for persons with convictions for that offence to work with children unless it is an exceptional case.” 18 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [42] although concerned with an earlier version of the Act; Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [23]. This is contrary to the position under the Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(8) which exhaustively lists the considerations to be applied: Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 at [16]. -- 6 of 12 -- 7 [31] The mandatory factors do not qualify the principle that the welfare and best interests of a child are paramount.19 This does not mean however that the factors are excluded by this overriding principle, merely that they are subordinated to it. “Paramount” is not equivalent to sole.20 [32] The factors which must be considered are: (a) In relation to the relevant offence: (i) Whether it is a conviction or a charge (ii) Whether the offence is a serious offence and if it is, whether it is a disqualifying offence; and (iii) When the offence was committed; and (iv) The nature of the offence and its relevance to employment, or carrying on a business that involves or may involve children; and (v) In the case of a conviction – the penalty imposed by the court, and if the court decided not to impose an imprisonment order or not to make a disqualification order under s 357, the court’s reasons for its decision. (b) Any information about the person given under s 318 (DPP) or s 319 (Corrective Services); (c) Any report about the person’s mental health given under s 335; (d) Any information given under s 337 (Mental Health Court) or 338 (Mental Health Review Tribunal) (e) Anything else relating to the commission of the offence that the chief executive reasonably considers to be relevant to the assessment of the person. [33] These factors, unlike the position under differently worded, equivalent legislation in other States,21 are not exhaustive. Although the factors in the Queensland Act are not exhaustive and there appears no express constraints on the matters that may be taken into account when considering whether there exists an “exceptional case”, the Appeal Tribunal has held that any hardship or prejudice caused to the applicant are not relevant considerations.22 The applicant’s evidence and submissions [34] The incident occurred as a result of a psychotic episode attributable to an undiagnosed mental illness. AD has now been diagnosed with schizophrenia and is under the care of Associate Professor Daniel Siskind, 19 Working with Children Act, s 360. 20 Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171. 21 See for example, Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(8). 22 AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 relying on Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171. -- 7 of 12 -- 8 Clinical Academic Psychiatrist, Metro South Addiction and Mental Health Services (Professor Siskind). [35] Professor Siskind gave strong oral evidence in support of AD’s application. His evidence was, essentially, that the applicant while treated posed no risk to children and that there was no reason, in his professional opinion, why she should not be issued with a blue card. Professor Siskind informed the Tribunal that one of the side effects of the medication used to treat AD’s schizophrenia is lethargy but that this may be managed by regulating the amount of the medication. [36] Professor Siskind stated that there was no particular impediment to a person generally while on such medication and that it was an issue of striking the appropriate balance. In his opinion, AD was stable in that respect. [37] Further, Professor Siskind was of the opinion that the applicant was in a better position generally than other members of the population because mental illness was prevalent and AD had a diagnosed and treated mental illness. This meant she had the necessary medical support in place as well as strong family support and was less likely as a consequence to be of risk to children than a person in the community with an undiagnosed mental illness. [38] Professor Siskind also provided a written Report dated 13 October 2016. In writing that report Professor Siskind relied upon an interview with AD, a review of her mental health records at the Princess Alexandra Hospital and other Queensland public health psychiatric facilities, and consultations with her inpatient psychiatrist, outpatient psychiatry registrar, case manager and clinical team. [39] Professor Siskind reports that AD’s schizophrenia is currently well managed on Paliperidone 100mg, four weekly, by injection. She is case managed by the Mobile Intensive Rehabilitation Team of the Metro South Addiction and Mental Health Service. Professor Siskind is the consultant psychiatrist for this team and supervises AD’s outpatient psychiatry registrar. [40] Professor Siskind reported that although AD has reasonable insight into her behaviour that led to the charges, she has limited insight into the role her schizophrenia has in causing this behaviour. In his opinion, at the time of the relevant incident, AD was having an acute psychotic episode secondary to untreated schizophrenia. AD however thinks that the incident was caused by dehydration and other stress she was suffering at the time. [41] In his opinion, the main risk factor for the return of similar behaviour would be a relapse of her psychotic illness while the main protective factor would be for AD to remain on a therapeutic dose of an antipsychotic medication. [42] The main preventative strategies would, in Professor Siskind’s opinion, be for AD to remain on a therapeutic dose of an antipsychotic medication. This could be done under the auspices of an Involuntary Treatment Order if she -- 8 of 12 -- 9 unreasonably refused and was at risk of harm to self or others through non- adherence to antipsychotic medications. [43] Close relatives of AD also gave evidence, which was generally supportive. It was clear that AD is very much loved and supported by her family, not only by her mother and father but also by her Aunt and Uncle. [44] AD’s Uncle, Paul, gave a reference in support of AD’s application and gave evidence during the hearing. Paul, in answer to a direct question from the Tribunal, essentially said that he was not confident, at this stage, that AD was well enough, in terms of her thought processes, to look after his two sons unsupervised. His concern appeared not to be that she would do anything to harm them but that she may not be sufficiently alert to foresee or counter risks to which they may subject themselves. [45] It was submitted on behalf of the applicant that the evidence of Professor Siskind conflicted with the evidence of Paul and that the expert evidence of Professor Siskind must prevail and is the more reliable evidence.23 The respondent’s evidence and submissions [46] In assessing whether there is a risk of harm, the respondent applied the evaluative approach endorsed by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher which involves identifying and balancing “risk” factors with “protective” factors arising from the circumstances of the particular case. [47] In applying that approach, the respondent identified the following protective and risk factors:24 Protective Factors (1) The applicant has the support of her parents; (2) Dr Siskind reports that the applicant’s illness can be managed by remaining on a “therapeutic dose of an anti-psychotic medication” which she is receiving while under an involuntary treatment order; (3) The applicant attended counselling sessions over a 5 year period and the applicant’s counsellor notes that the applicant has now gained good insights into what lead to her conduct; and (4) The applicant’s conduct leading to the charges against her occurred around the time of a relationship break-up; miscarriage, financial stress, and the applicant’s absence from her support networks, suggesting that the applicant’s conduct can be managed in the absence of particular stressors. Risk factors 23 Applicant’s written submissions dated 14 February 2017 at [13]. 24 See generally Respondent’s Outline of Submissions dated 6 February 2017, [28]-[29]. -- 9 of 12 -- 10 (5) The conduct leading to the applicant being charged demonstrated a lack of self-control and an inability to behave appropriately in a public place; (6) The applicant’s conduct leading to the charges against her occurred even though the applicant had regularly attended counselling over a 5 year period; (7) The applicant lacks insight into the causes of her behaviour leading to the charges against her, noted in the report of Dr Siskind, and demonstrated in her submissions to the Respondent of 8 April 2016; (8) The applicant’s “repeated requests” for a reduction of her medication supports an inference that the applicant lacks insight into the appropriate treatment for and management of her illness and demonstrates that the applicant may have difficulty in complying with treatment; (9) The applicant’s requests for a reduction suggest that, in the absence of an involuntary treatment order, the applicant would be at risk of suffering a relapse of her illness; and (10) The recency of the applicant’s conduct. (11) The charges arose from reports that the applicant was grabbing men by the genitals and engaging in other inappropriate behaviour in a shopping centre. The concern was that this was sexualised behaviour towards others in a public area where her behaviour was likely to have been witnessed by others including children.25 [48] The respondent submitted that overall, the risk factors outweighed the protective factors and that, given the paramountcy of the best interests of children, that this was an exceptional case. Is this an exceptional case? [49] The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case. [50] In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.26 [51] There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.27 25 Statement of Reasons for decision to issue a negative notice dated 13 June 2016, 7. 26 Maher at [30]. 27 WWC Act, s353(a); RPG v Public Safety Business Agency [2016] QCAT 351, [27]. -- 10 of 12 -- 11 [52] Looking at the factors which must be considered and at factors I consider relevant, I make the following observations: (a) the applicant is 37 years of age with no criminal record; (b) the reason for the incident was a psychotic episode secondary to untreated schizophrenia; (c) the incident occurred in May 2015, almost two years ago; (d) the incident did not occur in the course of child-related work and did not involve children; (e) the applicant is now diagnosed and her mental illness is well managed; (f) the applicant is unlikely to relapse while on a therapeutic dose of anti- psychotic medication; (g) if the applicant starts to feel unwell she has sufficient support structures in place, medical and family, to reduce the risk of a significant relapse; (h) AD was articulate, rational, relevant and composed while giving evidence; (i) AD came across as a compassionate, caring, kind and gentle person which was consistent with the oral evidence and personal references provided in support of her application. [53] I have had regard to reports about the applicant’s mental health provided pursuant to s 335 of the Act.28 [54] I have also considered the applicant’s submissions that I should prefer the evidence of Professor Siskind where it conflicts with that of Paul, a lay witness. I have taken the evidence of both into account. In my view, there is no serious conflict. Professor Siskind’s evidence was evidence about the risk of AD suffering another psychotic episode while Paul’s evidence was evidence given as a close family member of his observations of AD and the “impressions or inferences” he drew from that.29 [55] In terms of whether AD is at risk of doing something similar again, I find that the risk is not such as to make it an exceptional case where to give AD a blue card would not be in the best interests of children. Conclusion [56] In applying the matters to which I must and may have regard, on balance, I am not satisfied that this is an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued. [57] Accordingly, I order that the decision of the Director-General, Department of Justice and Attorney-General made on 13 June 2016 that this is an “exceptional case” within the meaning of s 221(2) of the Working with 28 WWC Act, s 226(2)(c). 29 Respondent’s Submissions In Reply dated 20 February 2017 at [12] citing Lithgow City Council v Jackson [2011] HCA 6 at [45]-[46]. -- 11 of 12 -- 12 Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case. -- 12 of 12 --