Ms Georgina Thomas representing Commissioner for Children and Young people and Youth Guardian

[1] HIC initially applied for a Blue card on 30 January 2012 so that he could do volunteer work at a Christian College and subsequently on 13 April 2012 he applied for a Blue card because he commenced paid employment at the College.

[2] The Commissioner for Children and Young People and Youth Guardian issued him with a negative notice on 27 September 2012 and refused his application for a Blue card. He now seeks a review of that decision.

[3] HIC is a 44 year old man who has a 6 year old daughter, A, who lives with him. He has previously been married and also has an 18 year old son, M, who lives with his former wife. He says that both children are healthy and emotionally and mentally well balanced.

[4] He was adopted as a child into a loving family and had an excellent childhood. He says that his family gives him great support and regularly look after his daughter. They have a weekly meal together.

[5] HIC says that he gets great support from his church where he has regular conversations with various pastors about how things are going in his life. He often attends a men's life group associated with the Christian Family Church.

[6] HIC was married for about 10 years before he got divorced and since then he has had another long term relationship for about 8 years. He is now separated.

[7] He has suffered from asthma all of his life and was treated for depression for about 2 years after his last separation.

[8] HIC acknowledges that he has had a past involvement with the recreational use of marijuana. He says that this has affected him most recently when he lost his job as a maintenance/groundsman at the Christian College.

[9] In his view his separation from his fiancé and his resignation from his position at the City Council to look after his daughter full-time meant that he had time on his hands. He started to grow vegetables and herbs. He also planted some fruit trees and eventually some marijuana seeds.

[10] HIC has an extensive criminal history with a long list of drug offences. In spite of his offending, he believes that he has functioned fairly well as an adult and ended up as a trade qualified Chef. He admits to having used marijuana for most of his life but that he stopped using it in 2012.

[11] When considering his application, the Commissioner received advice from the Queensland Police Service about HIC's criminal history. He has convictions for 29 offences committed between December 1986 and December 2011. 15 of these convictions are for drug offences including "supply dangerous drug" and "produce dangerous drug". He also has a conviction for "ill-treating an animal" in 1992 and 3 convictions for breaching a domestic violence order in 2001 and 2002. He has other charges that were resolved other than by way of a conviction.

[12] HIC believes he has kicked his drug habit and he now enjoys "a clear head". He also claims to have the added insurance of the security of his life not being susceptible to criminal charges or repercussions from involvement with drugs.

[13] He is very proud of what he has achieved to date and how he has stopped the part of his life that has previously caused him so many unnecessary problems and financial burdens.

[14] In his written material HIC expressed his concern that his drug involvement has previously jeopardised his work, mortgage and custody of his daughter and that he is now looking forward to putting it all behind him and returning to full time employment at the College.

[15] In a letter to the Tribunal dated 26 November 2012 HIC says that he respects the Commissioner's decision as a professional one but he feels that her decision was made on some misinformation and her unawareness of changes that he had made in his life. He then elaborates on his charges relating to animal cruelty, the breaches of domestic violence and the drug charge in late 2011. In cross-examination he admitted that his father had helped him write the letter.

[16] HIC seeks a review of the Commissioner's decision. He says that he stopped using drugs and associating with people involved in drug use in January 2011 and that he has had no strong urge to indulge in drugs since that time.

[17] The offences for which HIC was convicted are not serious offences under the Act. As a result the Commissioner must issue a positive notice to a person in circumstances where a person has a conviction, other than for a disqualifying offence or a serious offence.

[18] However, if the Commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice, the Commissioner must issue a negative notice to the person. It is this issue that the Tribunal must address.

[19] The standard of proof on which the Tribunal must be satisfied is the balance of probabilities. However, there is no onus of proof on either the applicant or the respondent.[1]

[20] The Tribunal is guided by the decision of Philippides J in Maher[1], which requires that the Tribunal must seek to balance the risk factors against the protective factors.

[21] The Tribunal is also guided by the judgement of Young CJ in Eq Commission for Young People v V[1] in paragraph 42 of his judgement where he refers to the necessity to find a "real and appreciable risk" to the safety of children.

[22] HIC has a criminal history spanning 25 years from 1986 to 2012 but he was offence free from July 2002 until December 2011. There was a 13.5 year gap in his drug offending from June 1998 to December 2011. His most recent charges occurred in April 2012 following a dispute at a retail outlet that led to him being charged with 2 offences of commit public nuisance and obstruct police.

[23] HIC does not deny his use of marijuana and in his oral evidence he readily admitted that he was a periodic user while at high school. He describes his use of marijuana as similar to that of other people who drink alcohol. When he first started work he says that he would use it about 3 times per week and 2-3 times per day.

[24] He feels that around the time of his last drug related charge in 2011 he had already started to lose interest and begun to feel guilty. He stopped enjoying smoking and because he was working at the Council he was aware that drug testing was going to be introduced for employees. He wanted to put more time into his daughter and move on. He now says his priorities have changed and he has more important things to look after such as his daughter.

[25] He acknowledges that he continued to smoke even when his daughter came to live with him but he felt that she would not have been aware of what he was doing. He realised that he could have lost his daughter to her mother and he wanted to give her his 100% effort and be more focussed on her. He denies that that his daughter suffered any adverse effect from his drug use.

[26] HIC acknowledges that his son was aware of his father's drug use and that his son felt it was a silly thing to do and that it was a waste of money. He now recognises that he was not setting a good example for his son.

[27] HIC claims that he has completely dissociated himself from his friends who were involved with drugs and that he has had nothing to do with them since the last time he was charged.

[28] HIC argued that in his view marijuana isn't as bad as other drugs and alcohol. He believes that decriminalisation would be a good thing. He said that if given the opportunity he would try to present a balanced view to people including his son.

[29] He admits to having received money for marijuana on occasions and that he doesn't believe the use of it is wrong.

[30] In relation to his other convictions, HIC demonstrated a tendency to minimise his involvement. He points out that the charges regarding the treatment of his dog only resulted in a small fine. He denies any use of violence regarding the 3 breaches of a domestic violence order and in relation to the most recent charges arising out of the incident at the retail outlet, he claims that the police officer knew he was on probation and that the officer "lost it". He says he wasn't breached on his probation and the charges were dropped and he was awarded costs.

[31] The Commissioner submitted that the Tribunal has to consider the best interests of children, as these are paramount under the Act. She contends that children, therefore, have a right to be protected from harm.

[32] She pointed out that on this occasion the Tribunal is dealing predominantly with convictions. She acknowledges that some of HIC's offending occurred sometime ago, but the passage of time is not, of itself, a determinative factor as to whether an exceptional case exists.

[33] The Commissioner contends that the Tribunal must consider carefully the volume, nature and recency of HIC's offending. She emphasises that his drug offending was entrenched, regular and persisted over a lengthy period of time. His recent drug use was also conducted partly while he had the full time care of his young daughter.

[34] The Commissioner expresses serious concerns about HIC's conviction for ill-treating an animal and breaching a domestic violence order.

[35] She submits that a pet is in a position of vulnerability and dependence and that HIC's violence towards his pet shows a propensity to resort to violence when he feels aggrieved and a failure to care for his pet appropriately. She says he does not acknowledge any wrongdoing and does not demonstrate any remorse or insight into his actions.

[36] With respect to the breaches of the Domestic Violence order, she argues that this demonstrates that he has difficulty dealing with personal conflict and frustration appropriately. Further he showed little empathy or concern for his ex-partner and minimised and justified his actions.

[37] The Commissioner expresses particular concern that while HIC's offending is not specifically directed at children or young people it is relevant to child-related regulated employment.

[38] She submits that HIC's involvement in the use and cultivation of marijuana on a significant scale is contrary to the welfare and best interests of his daughter.

[39] The Commissioner contends that his daughter is likely to have been exposed to and adversely effected by his heavy drug use and consequent involvement with other drug users, police and the criminal justice system.

[40] The Commissioner submits that the harm caused by drugs in society is well documented and parents have a responsibility to protect their children from such harm and children have a right to that protection.

[41] She says his son is also likely to have been adversely affected by being exposed to HIC's breaches of the domestic violence order and his mother's distress.

[42] The Commissioner argues that HIC's lengthy criminal history demonstrates an entrenched disregard for the law and the safety and well being of those around him, particularly his vulnerable and dependent children, his dog and his ex-partner.

[43] She acknowledges that HIC has demonstrated some insight into the harm caused by his drug use and offending. However she expresses her concern that he continues to minimise this, for example, by asserting that his most recent drug offending did not result in a conviction because the Court accepted that the plants were comprised of mostly self-sprouted seedlings.

[44] Further she submits that HIC fails to demonstrate how he was able to achieve total abstinence after 2 decades of usage including daily usage at the time of his most recent drug offending. He does not provide details of the drug awareness program he completed as part of his probation and the benefits he derived from the program. He does not say that he has undertaken any drug counselling or treatment to support his drug rehabilitation and to learn relapse prevention strategies.

[45] In summary the Commissioner has continuing concerns about the lack of insight demonstrated by HIC in relation to his offending behaviour.

[46] The task for the Tribunal in this matter is to determine if this is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice.

[47] The Tribunal accepts that when considering if this is an "exceptional case" "(t)he proper approach to it is... to consider its application in each particular case, unhampered by any special meaning or interpretation".[1]

[48] The Tribunal is also guided by the judgment of Young CJ in Eq Commission for Children and Young People v V [2002] NSWSC 949. At para [42] of his judgment where he refers to the necessity to find "a real and appreciable risk" to the safety of children.

[49] The Act is not a statute intended to impose additional punishment on a person who has criminal history. Rather, it is intended to put gates around employment to protect children from harm.

[50] Section 226 of the CCYPCG Act also allows for decision makers to consider anything else relating to the omission, or alleged commission, of the offence that the Commissioner reasonably considers to be relevant to the assessment of the person.

[51] In order to determine whether there is a "real and appreciable risk" to the safety of children, the Tribunal has identified potential risk factors and potential protective factors following the example in Commission for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.

[52] HIC has a long-term supportive relationship with his family and more recently has developed an extended network of friends and counsellors through his Church. He appears to be a well-regarded member of his Church community.

[53] He claims to have dissociated himself from his drug using friends.

[54] He has acknowledged his long-term involvement with drugs and appears to have developed strategies to avoid becoming involved in the future.

[55] He has provided a qualified acknowledgement of the Commissioner's decision. He admits that he has been "very foolish" in his past involvement with drugs. He says that reading the list of his past misdemeanours has been a sober revelation to him.

[56] He has identified further motivation arising out of the consequences of his actions including the possible loss of his daughter, loss of employment and income and a genuine fear of letting down his parents and his supporters from the Church.

[57] On the other hand, HIC has demonstrated an ongoing ability to come into conflict with the law. He managed to avoid coming to the attention of the Criminal Justice system for drug related matters for 13½ years from June 1998 to December 2011. However he was then convicted of some new drug offences and charged with some other offences.

[58] Overall, HIC has only demonstrated limited insight into his actions. He has continually attempted to minimize them and to some extent he has continued to try and justify his behaviour.

[59] He has not undertaken any professional counselling regarding his actions and he has not provided the Tribunal with any independent professional evidence regarding any risk she may pose to the welfare of children in his care;

[60] The Tribunal accepts that the experience of being charged, convicted and penalised has finally led to an acknowledgement by HIC that his actions were wrong.

[61] The Tribunal understands that HIC believes that the use of marijuana is no more harmful than the use of other legal substances such as alcohol or tobacco.

[62] HIC asks the Tribunal not to focus on the past but to look to the future. He says that his referees were informed of his history and that they put their reputations on the line because they believe in him.

[63] The Tribunal places substantial weight on the Commissioner's submissions that it must consider the best interests of children and not any detriment that HIC may suffer if he were not to get a blue card.

[64] It has taken into account that HIC has been convicted of many offences that are not defined as serious offences.

[65] The Tribunal remains concerned that HIC still underestimates the seriousness of his drug offending and continues to attempt to minimise and justify his behaviour generally. In this regard it is directly relevant to child-related employment.

[66] The Court has recorded a number of convictions and imposed a range of sentences. It is not for the Tribunal to retry these matters, but to determine in this case whether the risks outweigh the protective factors.

[67] The Tribunal has taken into account the positive references provided by HIC. As might be expected they are all very positive towards him. The level of support HIC received from these witnesses impressed the Tribunal.

[68] However The Tribunal is not satisfied about HIC's insight into his behaviour and considers that he continues to minimize his responsibility for his offending.

[69] The Tribunal must consider the fact that a Blue card is transferable. It is not satisfied that HIC has demonstrated he has addressed the concerns articulated by the Commissioner that to issue a Blue card to HIC would result in him being eligible to work in Child related employment or conduct a child related business generally.

[70] However, there is a real tension in this case that arises because the Tribunal is dealing with an applicant who otherwise appears to be a good person but who has made some serious mistakes. He appears to be genuinely trying to improve his lot in life. In essence this is a case about a man with a poor history who wants to put it behind him. Unfortunately it is only a short time since it appears that he last relapsed into his old ways.

[71] HIC seeks to obtain a Blue card. The Tribunal must decide whether he constitutes a "real and appreciable risk" to the safety of children and young people.

[72] Having considered all of these matters the Tribunal has come to the view that this is an "exceptional case" where on the balance of probabilities it is not in the best interests of children for a positive notice to issue to HIC at this point in time.

[73] HIC may benefit from ongoing professional help to deal with the consequences of his previous behaviour. The Tribunal encourages HIC to reapply for a Blue card as soon as he is able to and when he can demonstrate that he has addressed the issues that have been identified.

[74] The Tribunal orders that the Commissioner's decision be confirmed.

[75] The Tribunal has determined that it is in HIC's daughter's best interests and in the interests of justice that a confidentiality order be made in these proceedings so that the children are not able to be identified in any way.

[76] Accordingly, pursuant to section 66 of the QCAT Act, the Tribunal prohibits the publication of the names of the applicant, and his child, and the names of the witnesses. The reasons will be published in a de-identified format.

[1]. McDonald v Director General of Social Security [1984] FCA 5.

2. Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.

3. (2002) NSW SC 949

[1] Commissioner for Children and Young People and Child Guardian v. FGC [2011] QCATA 291.