QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	JBJ v Director-General, Department of Justice and Attorney-General [2022] QCAT 70	
PARTIES:	JBJ	
	(applicant)	
	v	
	Director-General, Department of Justice and Attorney-General	
	(respondent)	
APPLICATION NO/S:	CML058-20	
MATTER TYPE:	Childrens matters	
DELIVERED ON:	31 January 2022	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Member Paratz AM	
ORDERS:	1.	The decision of the Director-General, Department of Justice and Attorney-General to not cancel the negative notice is set aside, and substituted with the decision that:
(a)	There is no exceptional case within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld), and 
(b)	The negative notice is cancelled.	
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE LAW- CHILD WELFARE UNDER STATE AND TERRITORY LEGISLATION – Blue Card – where applicant was issued with a negative notice – where an application to cancel the negative notice was refused – whether exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice – where applicant has criminal history in relation to cannabis production and related matters – where applicant is an elite sports person who wishes to pursue a career in equestrian showjumping course design –– where applicant expressed remorse for  his offending – where protective factors were discussed – where the failure to provide health professional reports was considered
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1)
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221	
APPEARANCES & REPRESENTATION:		
Applicant:	Self-represented	
Respondent:	C Davies (Legal Officer, Blue Card Services)	
REASONS FOR DECISION
[1]	JBJ applied on 29 May 2018 to cancel a negative notice which was issued to him on 17 October 2014 under the Working with Children (Risk Management and Screening) Act 2000 (‘the Act‘). 
[2]	That application was refused by a decision of the Director, Blue Card Services (Screening Services), Department of Justice and Attorney-General (‘the Department’) on 18 December 2019, which was received by JBJ on 24 January 2020.
[3]	JBJ filed an application to review that decision in the Tribunal on 14 February 2020.
[4]	I heard the matter by an oral hearing on 30 November 2021, and reserved my decision. These are my Reasons in the matter.
The decision of the Department
[5]	The Department noted in its reasons for refusing to cancel a negative notice that JBJ had convictions in the Maroochydore Magistrates Court on 15 August 2013 for drug offences in 2012, for which he had received suspended custodial sentences as follows:
Producing dangerous drugs schedule 2 drug quantity of or exceeding schedule 3 ((between 22/03/2012 and 05/12/2012)	Conviction recorded
Sentenced
Imprisonment: 18 months
To be suspended for: 18 months	
Possessing dangerous drugs schedule 2 drug quantity of or exceeding schedule 3 (04/12/2012)	Conviction recorded
Sentenced
Imprisonment: 12 months
To be suspended for: 18 months	
Publishing or possessing instructions for producing dangerous drugs (04/12/2012)	Conviction recorded
Sentenced
Imprisonment: 3 months
To be suspended for: 18 months	
[6]	Information about the offences was summarised from the police brief of facts that: police conducted a search of JBJ’s residence, and smelled a strong smell of cannabis coming from within the home; that a search located two hydroponic systems growing cannabis plants in a room with six mature plants in one system which were approximately 1.5 m high, and a large ‘grow tent’ containing 11 small cannabis seedlings; that the system included high-intensity overhead lights, a watering system providing nutrients and an exhaust system; cannabis leaf and old cannabis plants in pots were found in other rooms; a large cardboard box containing cannabis leaf and bud, and two clip seal plastic bags containing cannabis were found; an amount of cannabis was drying under the house; hydroponic equipment was found in another room; three books on cannabis hydroponic cultivation and a bong and grinder were found.
[7]	The Department noted that JBJ had not provided submissions or supporting material to establish that: he accepted responsibility for his offending behaviour; understood and had addressed the circumstances or triggers that led to his offending; could provide a safe environment for children to protect them from harm and promote their well-being; he had ceased using dangerous drugs. 
[8]	The Department concluded that the submissions and references provided by JBJ did not displace the risk factors raised by the material; that there was insufficient material to indicate that he had developed appropriate strategies to avoid relapsing into drug-related behaviour in the future; and that he had not provided more information about his rehabilitation to address the risk factors, and had indicated he did not want to provide anything further.
Life Story
[9]	JBJ filed his life story. He described how he grew up on dairy farms on the Sunshine Coast in Queensland, and he and his brothers were ‘farm kids’ who enjoyed the benefits and freedom of life on the farm, helping where needed, riding horses and motorbikes, and going fishing and camping. 
[10]	He said that he developed an affinity for showjumping, and chose to attend the local State high school so that he could stay on the farm and ride horses before and after school. During high school he would compete successfully every year at Royal Shows in Brisbane, Melbourne, Adelaide and Sydney. He was named champion rider at the Sydney show on 3 consecutive occasions, and won 10 state titles from the age of 12 across multiple age groups and divisions. When he was 16, he was part of the team selected to represent Australia in Germany at the Friendship Games, and also represented Queensland teams in New Zealand on multiple occasions.
[11]	He said that he worked for a year at a stable in Florida in the USA when he was 17 years old, with a family he met at a competition in Germany. He then returned to Australia and attended university to study a Bachelor of Business (Marketing) but did not complete his degree. He then accepted jobs riding and training showjumping horses in Florida, California, and Mexico, with some of the largest and most prestigious stables in the world.
[12]	He then returned to Australia towards the end of 2007 and worked with his brothers on a cattle station on Cape York, and as a landscaper with his brother on the Sunshine Coast. At the same time he would frequently travel to Sydney to train and compete on a promising young horse which his parents had bought there.
[13]	A significant event then occurred, when he suffered an injury which had effects which he described as follows:
In 2010 I suffered a fall from my horse and separated my AC joint in my right shoulder. I was advised at the time that surgery wouldn’t be necessary and that physiotherapy would be sufficient rehabilitation. Despite considerable physiotherapy and attempts at Pilates and yoga I struggled to alleviate the discomfort. I began to experiment with self-medicating by smoking cannabis and was able to return to riding and compete.
[14]	In 2011 the horse he was riding was sold, as it became apparent it would not reach an international level, and he used the profit from the sale as a deposit for a house and continued working at a landscape supply business.
[15]	The offences occurred after the horse was sold, and whilst he was still suffering pain from his injury, and he described the circumstances of his offending as follows:
I continued smoking cannabis to assist with the pain management for my shoulder injury and the most challenging times I found were when I was home alone and had no distractions from the pain. I found myself in a situation where I no longer had a hobby to obsess over and with excess time and cash. As I was living alone I started to research growing my own cannabis and with the same naïve enthusiasm that had previously served me well I soon found I had overindulged in yet another hobby. I watched countless hours on youtube and purchased the latest and best equipment I could find online and obsessed over the latest high-tech gadgets to automate everything possible.
I recall one police officer on the day they came to my home bemused why someone would waste so much money on such a small room.
I recognise and understand my actions were foolish and illegal and in hindsight I regret them and fully accept responsibilities for the consequences.
[16]	He said that he had always considered becoming a showjumping course designer, and in 2014 travelled to Sydney to volunteer as an assistant course designer at a World Cup qualifier with a leading German course designer who advised him to become internationally accredited. He then went to Algeria to attend a clinic to obtain his level 1 FEI course designing accreditation.
[17]	Since 2015, he has been involved in the civil construction industry. He says he has a very stable and healthy friendship circle in Brisbane with whom he goes hiking and mountain climbing, no longer uses cannabis or any other illegal drugs or associates with people that do, abstains from alcohol, and has set himself personal fitness goals. 
[18]	He said that shortly after becoming certified, and having successfully designed courses at a number of events throughout Australia, the sport’s governing body Equestrian Queensland implemented a rule that all officials are required to hold a current blue card. He said that he is applying for a blue card ‘so that I may revive my passion for the sport of showjumping and contribute as an official to a sport that has provided many great memories and opportunities in my life’. 
The hearing
[19]	The only witness to give evidence at the hearing was JBJ.
[20]	JBJ had filed references from Alison Ford (the chair of the Equestrian Queensland Showjumping Committee); David Finch (the chair of Equestrian Queensland) and Doctor Tyson Phillips. He had not arranged for those witnesses to attend and give oral evidence. The references were marked as exhibits. JBJ described Ms Ford as a professional and personal acquaintance, and said that she was aware of his criminal history. He described Doctor Tyson as a former housemate.
[21]	At the commencement of the hearing, I asked JBJ about his not having filed any medical evidence, and asked if he wanted to seek an adjournment to obtain such evidence. JBJ said that he was happy to proceed with the hearing.
[22]	JBJ was cross examined by the Department, and oral submissions were made at the conclusion of the hearing by both parties.
[23]	JBJ said that he had been unemployed for about four months, and had previously been employed as operations manager for a civil construction company for a year until it ceased business.
[24]	He was asked about his use of cannabis, and he said that he regretted using cannabis as self-medication, and that it ‘wasn’t the smartest thing I have done’. He said that he had only tried it one or two times at college at social events before his injury, and he used it to manage his pain. He said that he has not used cannabis since 2012.
[25]	He said that he has tried prescription drugs to manage his pain, and remedial massage; that his shoulder still ‘looks funny’ but that the pain completely dissipated in about 2016, and he does not have ongoing pain.
[26]	He said that he hasn’t ridden horses competitively for 10 years, and stopped competing at an elite level when he no longer had a horse that was capable. He was asked if he was likely go back to competitive equestrian events and replied that ‘I wouldn’t say never’, but said that course designing is more satisfying.
[27]	The department referred to two incidents disclosed on his criminal and transport record, as to driving an unregistered vehicle in 2016, and as to applying for a blue card whilst being the holder of a negative notice in 2016. He said as to the traffic offence that he was unaware the vehicle was unregistered. He said as to the application for a blue card, that an official of the Equestrian Federation had filled out the blue card application for him, and that he was unaware that it was an offence to do so whilst holding a negative notice. No evidence was offered as to the blue card offence, and that matter did not proceed.
[28]	I asked JBJ how he was generally at handling paperwork and forms, and he replied that he had ‘room for improvement’.
[29]	JBJ said that he got on ‘great’ with children.
[30]	He said that he guessed that the process involved with his blue card application had affected his self-confidence.
[31]	He said that he had seen a psychiatrist on one occasion, but that the doctor wanted to see him over a series of appointments, which he could not afford. He said that he was not scared of what a psychiatrist might say about him.
[32]	He said that if he had a blue card that there are opportunities for him to get employment in designing showjumping courses; that every show required a different course; that he could probably do a show every month, and that if he was good enough, he could make a career from doing so.
[33]	In re-examination, JBJ said he wanted to clarify that he didn’t intend to, and never did, sell cannabis to anyone else, and was never charged with selling cannabis.
[34]	The Department said that it did not require to cross examine the three witnesses for JBJ.
[35]	Ms Ford said in her reference that she had known JBJ for 25 years. It is convenient to set out her reference in full: 
Over the time I have known (JBJ), he has always been a friendly and honest competitor, and demonstrated only true sportsmanship during his competition years. (JBJ) then trained to become a very capable course designer in the showjumping equestrian sport and has shown a great talent for this role, which is a very difficult and highly respected role in the equestrian sport.
Unfortunately he made an error of judgement which has caused him to be unable to hold a blue card but believe he is extremely remorseful for this error and wishes to continue with his passion of the equestrian sport and course designing. As the Equestrian Queensland Showjumping chair I would highly recommend that (JBJ) be able to continue with his goal to become an international showjumping course designer which requires him to hold a blue card.
I have personally seen him interacting with many children competing in our sport and never had an issue with his interactions or communications with the children. (JBJ) has a lovely caring nature and who assists the children in equestrian (JBJ) competitions to enjoy their sport. Personally I believe children gravitate to him and enjoy his company. During (JBJ)’s time as a course designer he has always demonstrated a professional manner to all competitors regardless of their age.
[36]	Mr Finch said that he had known JBJ for 25 years also. It is convenient to also set out his reference in full: 
(JBJ) is a very experienced and exceptional showjumping course builder. He builds showjumping courses that are technical and challenging for both horse and rider, while maintaining the paramount considerations of the safety of the rider and welfare of the horse.
Showjumping course builders of (JBJ)’s standard are rare in Queensland and the sport is very much in need of his skills.
I am aware of (JBJ)’s convictions for drug offences and feel confident that he poses no risk to the safety and welfare of children.
Showjumping course building occurs in an open space indoor or outdoor arena. The course builder is visible at all times and usually works with other adults who assist in locating the jump wings, rails, fillers and decorations. Children are not involved in course building and at no stage does a course builder interact unattended with a child. I have no hesitation in recommending (JBJ) for a blue card.
[37]	Doctor Phillips (who is not a medical doctor) noted in his reference that he had known JBJ for five years through regular interactions in their common social group. He said that he considered him to be a close friend, and a person of exceptional character notwithstanding that he is fully aware of his previous drug-related offences. He said that he had not witnessed JBJ partake in illicit substances for the duration he had known him. He said that he observed JBJ in the company of children and had never witnessed any behaviours that could be considered questionable.
Discussion
[38]	JBJ has not pursued his application in the most desirable way. Particularly, he has not obtained and provided health professional reports as to the relevant risk factors, and any protective strategies he has adopted.
[39]	The Department had invited JBJ to provide such reports in correspondence with him, and I asked him at the hearing whether he wanted time to obtain any such reports, which he declined. 
[40]	JBJ also had not arranged for his witnesses to be available to give evidence at the hearing. The need for witnesses to attend was outlined in Directions given on 26 March 2021.
[41]	JBJ had made an earlier application to the Tribunal on 18 February 2015 to review the decision made on 17 October 2014 to issue a negative notice. That application was made more than 28 days after the decision was received, and the Tribunal refused the application on 16 March 2015, as it was out of time, and no extension was given.
[42]	The central concern of the Department relates to JBJ’s convictions in 2013 for drug-related offences. Those offences are of a serious nature, as indicated by the imposition of a custodial sentence, albeit that the sentences were suspended.
[43]	I am disposed to form a favourable view of JBJ overall, having regard to his personal history.
[44]	It is clear that JBJ is an outdoors person. He had sufficient academic ability to be able to enrol in a university business course and undertake that for some time, but did not complete the course. He is clearly more comfortable working in outdoor occupations such as farming, landscaping, and equestrian pursuits.
[45]	JBJ was an elite sports person at an early age. It appears clear that competitive showjumping dominated his teenage years, to the extent of determining which school he wanted to attend, and an invitation to him to work overseas when he was 17.
[46]	The injury that JBJ suffered was clearly a determinative event in his life. It caused him significant pain.
[47]	The effect upon an elite athlete of a debilitating injury is well-known, as it can abruptly bring an end to a lifestyle that is all absorbing, and result in the athlete losing a sense of purpose, direction and self-confidence.
[48]	Whilst there was no medical evidence put before the tribunal that these consequences applied in JBJ’s situation, he did say in evidence that he had lost self-confidence.
[49]	In a statement JBJ said that ‘this current episode of my life has proven to be quite testing as it has taken over 4 years to be resolved, stagnating my development as a Course Designer’.
[50]	It appears to me that JBJ has lost self-confidence, and is suffering from a loss of direction, as he has been unable to pursue his lifelong passion in equestrian activities at the highest level; and frustration at the lengthy process involved in pursuing a blue card.
[51]	To my observation, this has continued through to his handling of this Application, in not obtaining professional health reports, or arranging his witnesses – I do not see any indication that he has failed to do those things because he would have been unable to do so, but rather that he has become dispirited at the consequences of his offending, and his situation, and has not engaged in the Departmental or Tribunal processes to his best advantage.
[52]	Whilst the referees for JBJ were not available to give evidence, and I have to exercise caution in considering those references, which were dated 2018 and in the absence of the opportunity for cross-examination, there is no challenge to the acceptance of those references.
[53]	The references provided by JBJ are best described as glowing, and describe a man of great ability and personability who made a serious mistake over 9 years ago, and is truly remorseful about doing so.
[54]	The drug-related offences were of a serious nature, but related only to the production and use of cannabis by JBJ for his own purposes. He says that he was led into the venture by wanting something to do, and to self-medicate for the pain of his injury. That was a very poor decision at the time, both as to the cultivation and use of illicit substances.
[55]	Whilst no sentencing comments have been provided from the Magistrates Court, it can be inferred from the imposition of suspended sentences that the court considered that JBJ was not a risk to the community by being free in it.
[56]	JBJ says that he has not used cannabis since 2012, and has described his current lifestyle which is one of healthy and active outdoor activity in the company of friends.
[57]	Whilst a drug-related offence is a matter of concern where a person is applying for a blue card, the commission of such an offence has to be placed in the context of the offending at the time, and in a time context, and considered in relation to the applicant’s current lifestyle and behaviour.
[58]	I accept that JBJ’s expressions of remorse are sincere. He has adopted protective strategies by not using illicit drugs, or alcohol, and pursuing a healthy lifestyle.
[59]	There is no suggestion that JBJ has in the past posed any danger to children, and his referees express no concerns about his working with children.
[60]	Whilst JBJ would have made the task of the tribunal more straightforward had he provided relevant health professional reports, and arranged for his witnesses to attend the hearing, I am satisfied that I am able to form an appropriate decision on the material before me.
[61]	Section 221(1) of the Act provides that the Chief Executive must issue a positive notice to an applicant in the following circumstances:
221 Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence 
(1)	Subject to subsection (2), the chief executive must issue a positive notice to the person if –
a)	the chief executive is not aware of any police information or disciplinary information about the person; or
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.	investigative information;
ii.	disciplinary information;
iii.	a charge for an offence other than a disqualifying offence;
iv.	a charge for a disqualifying offence that has been dealt with other than by a conviction; or
c)	the chief executive is aware of a conviction of the person for an offence other than a serious offence.
[62]	However, section 221(2) of the Act provides that 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 to issue a positive notice, the Chief Executive must issue a negative notice to the person.
[63]	The role of the tribunal in a review application is to produce the ‘correct and preferable decision’.
[64]	I consider that it is in the interests of JBJ’s well-being and future career prospects, as well as being in the interests of the community, that he be able to use his undoubted skills in equestrian activity, particularly as to course design which contributes to the safety of the participants and the welfare of the horses; and that there is no discernible risk to children in his doing so.
[65]	I consider that the correct and preferable decision in this matter is that this is not an exceptional case in which it would not be in the best interests of children to issue a positive notice. 
[66]	These reasons are to be published in a de-identified form, pursuant to Section 125(1) of the Queensland Civil and Administrative Tribunal Act 2009, to preserve the privacy of JBJ as to his personal background, and for his well-being and to assist him to resume his career.
[67]	I set aside the decision of the Department, and substitute it with a decision that there is no exceptional case, and that the negative notice is cancelled.
[68]	JBJ may now pursue his application for a blue card further with the Department.