Carr v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 106

CITATION: Carr v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 106 PARTIES: Derek John Carr (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML302-15 MATTER TYPE: Children’s Matters HEARING DATE: 22 March 2016 HEARD AT: Brisbane DECISION OF: Member Traves DELIVERED ON: 19 April 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive Officer, Public Safety Business Agency made on 19 November 2015 to issue a negative notice and refuse the blue card application by Derek Carr is set aside. 2. A positive notice is to be issued to Derek Carr. CATCHWORDS: REVIEW JURISDICTION – BLUE CARD – where conviction of serious offence in 1995 - whether an “exceptional case” warranting departure from the general rule that a negative notice must be issued – application of factors in s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) – regard to matters relating to the commission of the offence reasonably considered relevant to the assessment of the person within s226(2)(e). Criminal Code Act 1899 (Qld), s 409, s 411 Queensland Civil and Administrative Act 2009 (Qld), s 19, s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 167, -- 1 of 10 -- 2 s 169, s 221, s 225, s 226, s 353, s 354, s 358, s 360, Schedule 7. Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 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 Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1 APPEARANCES: APPLICANT: Mr Stuart Wills, Aboriginal and Torres Strait Islander Legal Service, appeared for the applicant. RESPONDENT: Ms Kylie Heath represented the Public Safety Business Agency. REASONS FOR DECISION Introduction [1] This is an application for review of a decision by the Public Safety Business Agency to issue a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (‘the Act’) in respect of the application by Mr Derek Carr for a blue card. [2] Mr Carr was born in Bundaberg on 18 January 1971 and is 44 years old. He identifies as Aboriginal on his mother’s side who is part of the Yuggera people. Mr Carr is one of eight children and has 6 children of his own. [3] Mr Carr was convicted in the Ipswich District Court on 30 April 1996 of the offence of ‘steal with actual violence whilst in company and then used personal violence’ for which he was sentenced to 18 months imprisonment. Mr Carr has not been convicted of any other offences involving violence since. [4] Mr Carr has been employed as a patient transport driver for the Kambu Health Service, an organisation which assists the indigenous community since April 2015. His job principally involves driving patients to their medical appointments. As some of these patients may be children, Mr Carr needs a blue card to continue to drive the bus. [5] Mr Carr applied for a blue card, as requested by his employer, but was issued with a negative notice on 19 November 2015. In short, this was because his offence was a ‘serious offence’ under the Act and the Chief -- 2 of 10 -- 3 Executive was not satisfied that his was an ‘exceptional case’ in which it would not harm the best interests of children for him to be issued with a blue card.1 [6] Mr Carr has applied to QCAT for a review of that decision. [7] 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 decision as to whether or not there is an exceptional case if, because of the decision, a negative notice was issued.4 [8] 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 [9] 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 [10] Mr Carr is not a disqualified person and applied for review within the prescribed period. The “blue card” legislative framework [11] The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in particular employment or particular businesses.7 [12] 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 with the potential for future harm to children. [13] 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 1 Working with Children Act (Risk Management and Screening) Act 2000 (Qld) (the Act), s 225. 2 Ibid, s 169. 3 Ibid, s 354(1). 4 Ibid, s 353(a)(i). 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), s 19. 6 Ibid, s 20. 7 The Act, s 5. 8 Child related employment decision is defined to include a chapter 8 reviewable decision: the Act, s 358. 9 Ibid, s 360. See also s 6. 10 Ibid, s 221. -- 3 of 10 -- 4 (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 [14] The second category applies, relevantly, where the applicant is guilty of a ‘serious offence.’ Section 225 is the governing provision. It provides (emphasis added): (1) Subject to section 223 and subsection (2), the chief executive must issue a negative notice to the person if the chief executive is aware the person- (a) …. (b) … (c) has been convicted of a serious offence. (2) If subsection (1)(a), (b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a positive notice. [15] ‘Serious offence’ is defined, relevantly, as an offence against a provision of an Act mentioned in Schedule 2, column 1, subject to any qualification in column 3.12 Schedule 2 includes offences committed under Chapter 38 – Stealing with Violence – Extortion by Threats’ of the Criminal Code Act 1899 (Qld) (‘the Code’). The relevant offence under this Chapter is s 409, the offence of robbery. Under s 409 robbery is defined as: Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery. [16] The offence is a qualified one in that, for the purposes of the Act, it will only constitute a ‘serious offence’ if an offender was or could have been liable under s 411(2) of the Code. [17] Section 411(2) of the Code states: If the offender is or pretends to be armed with any dangerous or offensive weapon or instrument, or is in company with 1 or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, the offender wounds or uses any other personal violence to any person, the offender is liable to imprisonment for life. [18] The court brief relating to the offence indicates that Mr Carr, when he punched the complainant and the complainant’s wallet was stolen, was accompanied by two other men who had left the local pub with Mr Carr. [19] The fact that Mr Carr was accompanied at the time of the offence by two men, makes it a ‘serious offence’ under the Act. Where the offence is a 11 The Act, s 225. 12 Ibid, s 167(1). -- 4 of 10 -- 5 ‘serious offence’ the offender must be given a negative notice unless the decision-maker is satisfied it is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued. [20] The issue in this case is whether, given the commission of a serious offence, the Tribunal is satisfied it is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued. What are the requirements for an exceptional case in which it would not harm the best interests of children for a positive notice to be issued [21] The legislation does not prevent someone with a conviction for a serious offence from ever having a blue card. Although ordinarily a negative notice will be issued, the Parliament has conferred a power on the chief executive where it is affirmatively satisfied that an ‘exceptional case’ exists, to issue a positive notice. An analysis or evaluation of the risk or degree of risk that the applicant might harm the best interests of children, in the course of carrying out child-related work, is required. If the Tribunal is satisfied that the case is an exceptional one in which it would not harm the best interests of children for a positive notice to be issued, the Tribunal must give a positive notice to the applicant.13 [22] Exceptional case is defined in Schedule 7 to mean ‘exceptional case as mentioned in section 221(2), 222(2), 223(4) or 225(2)’.14 [23] In deciding whether it is an exceptional case in circumstances where the person 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 exhaustive15 and will not necessarily be given equal weight in the evaluative exercise to be undertaken. [24] The factors which must be considered are: (a) In relation to the relevant offence: (i) whether it is a conviction or a charge; and (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 or is alleged to have been 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 for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision; 13 The Act, s 225(2). 14 Ibid, s 3. 15 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]. -- 5 of 10 -- 6 (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. [25] An exceptional case in the context of s 225 has been held to mean one that does not conform to the general rule, which is that a negative notice must issue refusing a ‘blue card’.16 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.17 [26] The expression ‘exceptional case’ must be read in its statutory context. Although the default position is that a person convicted of a ‘serious offence’ should not get a blue card, the statute lists a number of factors in s 226 under the heading ‘Deciding exceptional case if conviction or charge’. The factors in subsection (2)(a) are all directed to the commission of the offence and include when it was committed, any penalty imposed, the nature of the offence and whether the offence is relevant to employment that may involve children. The factors also include a broad power under s 226(2)(e) to have regard to: anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person. [27] In addition to these factors, any information or report about the person given under the Act must also be considered.18 [28] The factors are not exhaustive so regard may be had to other matters the decision-maker reasonably considers relevant to its decision having regard to the statutory context. The applicant’s evidence and submissions [29] The applicant called one witness, Ms Angela Bond, a friend and work colleague. Ms Bond has known Mr Carr for over twenty years. Ms Bond gave evidence that Mr Carr was responsible and reliable at work and that he did not drink to excess. She also spoke highly of his belief in his Aboriginal heritage and of his love of helping others at community events involving indigenous children and elders. She also spoke positively of his interactions with children, including caring for their well-being and safety as well as his good parenting skills. 16 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [4]. 17 Maher at [34] citing Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1. 18 The Act, s 226(2)(b)(c)(d). -- 6 of 10 -- 7 [30] The applicant relied on references from Mr Wayne Mackenzie, Transport Co-ordinator at Kambu Health, Dr Kenneth Kuen, General Practitioner at the Kambu ATSICH Laidley Clinic, Ms Janet Keats, Practice Nurse at the Kambu Medical Centre, Mr Warren Martin, psychologist, Ms Stella Johnson, Chief Executive Officer of the Kambu Health Corporation and Ms Samantha Capewell, Mr Carr’s former partner. [31] Mr Mackenzie referred to Mr Carr as punctual, professional and caring for those he was responsible for transporting. He also noted that Mr Carr had not taken any time off work since he started and that he had successfully completed a First Aid course and a two-day Type-1 fitter training course run by Kidsafe Qld. [32] Dr Kenneth Kuen describes Mr Carr’s duties to be ‘transporting our patients to and from appointments at Laidley Clinic, Ipswich Clinic and major hospitals in our region’. He states that Mr Carr has carried out his duties conscientiously and efficiently and that describes him as a ‘valued member of our team at the Laidley Clinic’. [33] Ms Janet Keats described his interactions with children as always being of a ‘caring nature’. She states that Mr Carr has always treated the patients he transports with empathy and respect. He is also reliable and telephones ahead to make sure that any patients needing transport home from the Clinic are met. [34] The report from Mr Warren Martin, psychologist states that on tests for depression and anxiety that Mr Carr’s scores were in the minimal range. Mr Martin also noted that Mr Carr from the interview, presented and behaved appropriately and that there was no reason to suspect any existing pathology. [35] Ms Stella Johnson states that ‘it is important to note that Kambu Health is supportive of Mr Carr and his appeal process and wish him all the best’. [36] Ms Samantha Capewell describes Mr Carr as ‘a very caring and giving father’ who has always been a ‘great Dad and person’. The respondent’s evidence and submissions [37] 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. -- 7 of 10 -- 8 [38] In applying that approach, the respondent identified a number of factors including: Protective factors (1) The applicant applied for a positive notice and blue card in order to undertake work as a driver with Kambu Health. The applicant therefore has employment goals. (2) The applicant, in his written submissions, refers to having undertaken anger management and drug and alcohol course in 1996, following the serious offence, and in 2003. (3) The applicant has provided a written reference from Ms Angela Bond. Ms Bond has known the applicant for 20 years and speaks highly of his belief in his Aboriginal heritage and his love of helping others at community events involving indigenous children and elders. She speaks positively of his interactions with children, including caring for their well-being and safety, as well as his good parenting skills. Risk factors (4) The applicant’s criminal history contains a conviction for ‘steal with actual violence whilst in company and then used personal violence’ which is categorised as a serious offence under the Act. The respondent notes that the applicant’s last known offence was committed in 2008. However, the respondent submits that the lack of known offending since 2008 is not unusual for the applicant’s stage and age in life, and does not reduce the concerns relating to his offending behaviour. (5) The applicant’s offending commenced at 17 years of age and continued until 37 years of age, when the applicant was a mature adult. While the respondent acknowledges that there have been no further entries on the applicant’s criminal history since 2008, approximately seven years ago, it is submitted that this alone does not constitute an exceptional case. It is noted that he has had a prior gap in his offending of up to five years. (6) The applicant has a lack of demonstrable insight into the nature of his offending in relation to the serious offence and a charge in 2003 for possessing cannabis. … [39] 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 not an exceptional case. Is this an exceptional case? [40] The factors in s 226(2)(a) are factors which must be considered in assessing the risk involved in giving someone, with a conviction of the type of offence committed, a blue card. In looking at the nature of the offence, sentence imposed and when it occurred the Tribunal is, in effect, assessing the degree and seriousness of any future risk to children if the -- 8 of 10 -- 9 applicant were to be engaged in child-related employment and the likelihood of any such future risk materialising.19 [41] In terms of the level of satisfaction required, 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.20 [42] Looking at the factors which must be considered, I make the following observations: there was a conviction; it was a conviction for a serious offence but not a disqualifying offence. [43] The offence was committed in 1995, when the applicant was in his twenties, now over twenty years ago. [44] The offence did not occur in the course of child-related work and did not involve children. [45] The Respondent tendered the agency’s Statement of Reasons for issuing the negative notice. The Statement included the Applicant’s criminal history, to which I have had regard. [46] His criminal record was described as spanning twenty years, from 1988 to 2008. His most recent offence, in 2008, is described as ‘contravene direction or requirement’, for which he was fined $150. The immediately prior conviction was for possession of a small amount of cannabis in 2003, for which he was fined $300. [47] The preponderance of the earlier offences were at a time when, by his own admission, he was drinking and in the wrong company. [48] None of the offences concerned children. [49] Under s 226(2)(e) the decision-maker must consider ‘anything else relating to the commission of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.’ The conviction is, of course, conclusive as to the guilt of the accused in relation to the offence charged and the sentence imposed.21 That does not prevent me, however, from having regard to ‘anything else relating to the commission …of the offence’ that I reasonably consider relevant to the assessment of the person. Indeed, I am obliged by s 226(2)(e) to do so. [50] Matters relating to the commission of the offence that I consider to be relevant to the assessment of Mr Carr are the following: the offence 19 It has been held implicit in the purpose and scheme of the Working with Children Act that the risk of harm to children is relevant to determining whether an assessment notice should or should not be issued: Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 at [19]. 20 Maher at [30]. 21 Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 at [212]. -- 9 of 10 -- 10 happened during a time when he was immature, unemployed and his life revolved around football and drinking; Mr Carr was also intoxicated at the time and, on his evidence, had been provoked by the complainant who had racially abused Mr Carr’s female relatives. [51] I also take into account the fact that Mr Carr has matured since the time of the offence. He has, on his evidence and that of his friend and colleague, Ms Angela Bond, settled down and no longer goes out like he used to. He has also completed an Anger Management Course and a Drug and Alcohol Course. He is close to his mother, who he clearly respects as a mother but also as an elder in the indigenous community. He is also proud of having recently been made a grandfather. The applicant appeared during the hearing as a decent and genuine person. [52] The applicant works as a transport driver, driving patients to their medical appointments at the centre and elsewhere. I take into account the references relied upon. The referees are all supportive of the application, and include a general medical practitioner at the centre, the nurse at the Centre, the Chief Executive Officer and the Community Liaison Officer. The evidence shows that the applicant did not miss a day of work in the seven months that he worked before the blue card application was denied. The references show he is well respected and well-liked by patients and staff. The references and the applicant’s work performance speak strongly of his responsibility and of him having overcome personal difficulties which the evidence shows he used to suffer. [53] The factors in s 226(2)(b)(c)(d) do not apply. [54] Taking all matters into account, I am satisfied, to the requisite standard, that this is an exceptional case in which it would not harm the best interests of children for a blue card to be issued. Conclusion [55] The decision of the Chief Executive Officer, Public Safety Business Agency made on 19 November 2015 to issue a negative notice and refuse the blue card application by Derek Carr is set aside. [56] A positive notice and blue card is to be issued to Derek Carr. -- 10 of 10 --