Bailey v Department of Natural Resources and Mines [2018] QCAT 43

CITATION: Bailey v Department of Natural Resources and Mines [2018] QCAT 43 PARTIES: Steven Frank Bailey (Applicant) v Department of Natural Resources and Mines (Respondent) APPLICATION NUMBER: GAR052-17 MATTER TYPE: General administrative review matters HEARING DATE: 10 January 2018 HEARD AT: Brisbane DECISION OF: Member Gardiner DELIVERED ON: 22 February 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Inspector of 8 February 2017 to suspend Steven Frank Bailey’s licences under section 24 of the Explosives Act 1999 (Qld) is confirmed. CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – EXPLOSIVES – LICENCES AND PERMITS – where long standing domestic violence findings made in protection proceedings – where explosives licences suspended after domestic violence protection orders made – Where no other community concerns and potential financial loss – whether suspension should be overturned Explosives Act 1999 (Qld), s 15, s 23, s 24 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 5 -- 2 REASONS FOR DECISION [1] Steven Bailey provided shotfiring of explosives services in his drilling and blasting business. In his estimation, he had held this shotfirer’s licence for more than 30 years.1 [2] Mr Bailey married in 1986 and separated in 2016. [3] On 4 July 2016, a temporary protection order nominating Mr Bailey as the respondent was made by consent under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act). A further temporary order was made on 4 October 2016. [4] On 8 February 2017, the Chief Inspector suspended Mr Bailey’s five licences (including the shotfirer’s licence) under section 24 of the Explosives Act 1999 (Qld) (Explosives Act). [5] On 6 March 2017, Mr Bailey applied to QCAT to review this decision including in particular his shotfirer’s licence. The review is a fresh hearing of the case with the purpose of producing the correct and preferable decision2 on the evidence before the tribunal. [6] On 19 May 2017, after a final contested hearing in the DFVP Act matter in which Mr Bailey was a respondent, a protection order was made and continues in force until 3 July 2018. This tribunal has the advantage of reading the transcript of the decision of the learned magistrate in the making of that protection order. [7] Section 15 of the Explosives Act allows reasonable enquiries about a licence holder (described under the Explosives Act as an “authority”) to help decide whether the person continues to be an appropriate person to hold an authority. Enquiries can be made about Mr Bailey’s character and mental health and whether a domestic violence order has been made at any time. [8] Section 23(d) of the Explosives Act allows the suspension or cancellation of a licence if the holder is no longer an appropriate person. [9] A psychologist provided a report for consideration in this matter. The psychologist first saw Mr Bailey once in August 2016 regarding relationship, domestic violence and mental health concerns expressed by Mr Bailey’s GP. [10] The psychologist then saw Mr Bailey on a one-off consultation in June 2017 to prepare his report. No testing appears to have been undertaken to support the report and it appears to be based on Mr Bailey self-reporting to 1 Affidavit of S. Bailey dated 6 March 2017, [22]. 2 (QCAT Act), s 24. -- 2 of 5 -- 3 the psychologist, without the assistance of any other independent documentation. [11] Having discussed the self-reported events with Mr Bailey, the psychologist opines that: a) Mr Bailey poses no threat to himself or the community. b) Mr Bailey reports there have been no issues of concern regarding any threat to himself, his ex-wife or the community since his separation. c) Mr Bailey is adamant that he has never initiated any violence against his ex-wife. d) In the psychologist’s view, Mr Bailey demonstrated insight into his past behaviour and remorse and is determined to move on with his life. e) Mr Bailey shows no signs of depression having developed between his first visit in August 2016 and the second visit in July 2017. He reported he has continued to work, moved house and formed a new relationship. f) Mr Bailey shows no other signs of a personality disorder or mental health conditions. [12] Mr Bailey says after his property settlement with his wife, his only source of income is likely to be his drilling and blasting business. He anticipates this will affect his income in future financial years.3 [13] He denies hitting, pushing or pulling his wife, vandalising or intentionally causing damage to equipment or threatening his wife with words.4 He says he has had no contact with his wife since the making of the temporary protection order and does not propose to have any contact in the future. [14] After a contested hearing the learned magistrate observed in his reasons that Mr Bailey was “evasive” in the way he answered questions and “that he did act to minimise his actions, to justify his actions and there was, of course, inconsistency between his affidavit and his evidence”. [15] The learned magistrate accepted there had been a long history of domestic violence in the marriage.5 [16] The Chief Inspector submits the object of the Explosives Act is to ensure the safety of the community6 and this object is held in common with the Weapons Act 1990 (Qld) and the DFVP Act. 3 Affidavit of S. Bailey dated 9 October 2017, [4]. 4 Affidavit of S. Bailey dated 6 March 2017, [12]. 5 Transcript page 3 at 15-25. 6 The Chief Inspector cites the Explosives Bill 1998 as authority. -- 3 of 5 -- 4 [17] The Chief Inspector further submits the question to be decided is whether Mr Bailey remains an appropriate person to hold a licence under the Explosives Act when a protection order has been made against him. [18] Having denied making threats to misuse explosive or firearms, Mr Bailey submits: a) The making of the domestic violence order was only one factor to be considered and was given unnecessary weight. The order was backdated and made for the minimum statutory period. b) The learned magistrate made no findings that any act of violence involved the use or threat to use explosives. c) The evidence is that Mr Bailey is of good mental health and poses no threat to any person or the community. He is unlikely to present with personality disorders and has moved on in his life. d) Mr Bailey deposes to adequate facilities for the storage of explosives. e) There is no evidence or allegation of any criminal history. f) Mr Bailey has at all times been a model licence holder and fully complied with all requirements. g) There is evidence that his ability to earn his income will be affected by the suspension, until the conclusion of the domestic violence order in July 2018. [19] The Chief Inspector submits: a) At the hearing of the final domestic violence application, Mr Bailey’s wife gave evidence that he made threats to misuse explosive or firearms. b) The findings of the learned magistrate include that Mr Bailey lacked credit and that the marriage had been characterised by violence for many years. c) Even after a considerable passage of time and the apparent financial settlement between the parties, the learned magistrate having heard all the evidence, still believed Mr Bailey’s wife required statutory protection and this is a significant factor in this decision. d) It is not in Mr Bailey’s favour that the violence matter proceeded to trial and that there appears to be no remorse. e) There has been a modest reduction in Mr Bailey’s income. f) The forensic psychologist’s report of 15 June 2017 consists of a self- serving, self-reporting statement by Mr Bailey and cannot be relied upon. -- 4 of 5 -- 5 Is Mr Bailey an appropriate person to hold explosive licences? [20] Of concern are the findings of the learned magistrate that Mr Bailey’s evidence was evasive and that he sought to minimise and justify his actions concerning domestic violence and that there was inconsistency between his affidavit and his evidence. [21] The psychologist says Mr Bailey poses no threat and has moved on in his life to another relationship. [22] However, that report is almost wholly based on self-reporting by Mr Bailey with only one prior visit to the psychologist. The reporting of Mr Bailey is at odds with the evidence accepted by the learned magistrate. For example, whether the violence was perpetrated by Mr Bailey alone. These inconsistences and the fact that the report has no independent testing of the self-reporting of Mr Bailey by production of, for example, the court documents or transcript, limit the independent weight I accord this evidence. [23] In Mr Bailey’s favour is that there has been on his evidence no contact with his ex-wife and no recorded breaches of the protection order. Mr Bailey had held his licence for a number of years prior to his marriage and there are no other incidents or issues in the wider community. [24] I also accept there is an expected ongoing financial effect on his income while the license is suspended, although this appears to be unquantifiable at this time and may not be substantial. [25] I accept that Mr Bailey’s marriage was characterised by long standing violence. I also accept that he attempted to deny or minimise these acts in the court protection hearings and in these proceedings. [26] However, he has no history of any other community concerns in relation to his licence of over 30 years and since the making of the protection order, no recorded breaches. He swears he has had no contact with his ex-wife since the making of the order. [27] On balance, I am satisfied the long standing violence perpetrated in his marriage and his attempts to deny or minimise these acts in the court protection hearings and in these proceedings outweigh the matters that are in Mr Bailey’s favour. I am satisfied that Mr Bailey is no longer an appropriate person to hold an explosives licence for the term of the domestic violence protection order. [28] The decision of the Chief Inspector of 8 February 2017 to suspend Mr Bailey’s licences under section 24 of the Explosives Act is confirmed. -- 5 of 5 --