Bayley v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 84

CITATION: Bayley v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 84 PARTIES: Daniel Adam Bayley (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML140-15 MATTER TYPE: Childrens matters HEARING DATE: 14 March 2016 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 15 March 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive Officer, Public Safety Business Agency on 3 June 2015 to issue Daniel Adam Bayley a negative notice is confirmed. CATCHWORDS: APPLICATION FOR REVIEW – BLUE CARD – NEGATIVE NOTICE – whether exceptional case – whether not in best interests of children to issue Positive Notice - where no further incidents of offending behaviour for considerable period – where no evidence of triggers for offending behaviour or strategies to address those triggers - where applicant tried to minimise offending behaviour by maintaining innocence – where applicant showed no insight or understanding of impact of offending behaviour on others – where community expects those working with children to understand impact of behaviour on others and how it might be perceived by a child Working with Children (Risk Management and Screening) Act 2000, ss 6, 156, 221, 226, 360, -- 1 of 6 -- 2 Schedule 1 BI v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 311 Commissioner for Children and Young People and Child Guardian v. Maher & Anor [2004] QCA 492 Drinkwater v. Commission for Children and Young People and Child Guardian [2010] QCAT 293 HIC v. Commissioner for Children and Young People and Child Guardian [2013] QCAT 403 JA v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 251 Peri v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 Pritchard v. Chief Executive Officer, Public Service Business Agency [2015] QCAT 25 Re TAA [2006] QCST 11 Stitt v. Chief Executive Officer Public Safety Business Agency [2015] QCAT 257 APPEARANCES and REPRESENTATION (if any): APPLICANT: No appearance RESPONDENT: Ms Kylie Heath, Advocacy Officer appeared for the Chief Executive Officer, Public Safety Business Agency REASONS FOR DECISION What is this Application about? [1] Mr Daniel Bayley works hard to support his family. He applied for a positive notice (Blue Card) to work in child-related employment, ostensibly to help his wife who operates a family day care centre. However, on 3 June 2015 the Chief Executive Officer of the Public Safety Business Agency issued Mr Bayley with a ‘negative notice’ because of certain behaviour in 2001. This means that Mr Bayley cannot obtain a Blue Card to work in certain types of employment and volunteer work.1 [2] Mr Bayley wants the Tribunal to review the Chief Executive’s decision. Because he is not convicted of any ‘serious offence’, Mr Bayley is entitled to be issued with a positive notice unless his case is ‘exceptional’.2 1 Working with Children (Risk Management and Screening) Act 2000, s 156 and Schedule 1. 2 Working with Children (Risk Management and Screening) Act 2000, s 226. -- 2 of 6 -- 3 [3] In reviewing the Chief Executive’s decision that Mr Bayley’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue a positive notice.3 To determine this, I must identify and balance protective factors with risk factors.4 Background [4] Six days before the hearing, Mr Bayley applied to reschedule the hearing due to work commitments. The Tribunal refused this request5 because despite previously rescheduling the hearing to accommodate Mr Bayley,6 and notifying him of the new hearing date for almost four weeks,7 Mr Bayley did not provide any supporting evidence from his employer or otherwise for a further adjournment. [5] Mr Bayley was also given leave to attend the hearing by telephone8 but did not appear, despite indicating that he could attend by telephone and the Tribunal attempting to contact him on his mobile number and home number at the start of the hearing. [6] The Tribunal therefore proceeded to determine the application in Mr Bayley’s absence9 based on the material provided, including Mr Bayley’s material filed with the Tribunal. Is it not in the best interests of children to issue a Positive Notice to Mr Bayley? [7] Because a Positive Notice authorises a person to work with children in any environment, the welfare and best interests of a child are paramount.10 [8] Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.11 What protective factors favour issuing a Positive Notice to Mr Bayley? [9] Since the offending behaviour, Mr Bayley has shown a commitment to getting on with his life. He is a married man with two young children. He has served his country through deployments to Iraq. He has prioritised supporting his family, by working wherever and whenever he could. There have been no further incidents of offending behaviour since – a considerable period of 15 years. [10] Mr Bayley provided two positive character references.12 Both are from parents of children who attend Mrs Bayley’s day care centre and attest to 3 Working with Children (Risk Management and Screening) Act 2000, s 221. 4 Commissioner for Children and Young People and Child Guardian v. Maher & Anor [2004] QCA 492. 5 Direction 1 dated 9 March 2016. 6 Decision dated 30 October 2015. 7 Notice of Hearing dated 18 February 2016. 8 Direction 2 dated 9 March 2016. 9 Queensland Civil and Administrative Tribunal Act 2009, s 93(1)(a); Direction 4 dated 9 March 2016. 10 Working with Children (Risk Management and Screening) Act 2000, ss 6(a), 360. 11 Working with Children (Risk Management and Screening) Act 2000, s 6(b). 12 Email Eric Dicka and Precious Dicka to Chief Executive Officer, Public Safety Business -- 3 of 6 -- 4 Mr Bayley helping to provide a safe environment for their children. However, it is unclear whether the referees were aware of the nature of the previous offending behaviour and that it occurred on more than one occasion, as they only refer to “past history” and “an incident occurred years back about Daniel”. This reduces the weight of their evidence.13 [11] Mr Bayley also provided a report from Dr Jayne Ingham.14 Dr Ingham relevantly stated: Daniel should not have any risk factors or triggers that would cause him to repeat his offence. He is very aware that he doesn’t urinate in public and hasn’t repeated this offence since the original charge. [12] There are difficulties with Dr Ingham’s report. The report does not identify the information used in its compilation, and it is unclear whether Dr Ingham was provided with all relevant information, including the police brief and the Agency’s Statement of Reasons.15 The reference to urinating in public would appear to indicate that Dr Ingham has relied solely upon Mr Bayley’s version of the circumstances of the offence. [13] Moreover, the report does not discuss the specific triggers for the offending behaviour, strategies learnt and whether Mr Bayley has completed counselling and the outcomes. Without evidence of the specific risk factors or triggers for Mr Bayley’s behaviour, it is impossible for the Tribunal to determine whether those triggers or risk factors still exist or have been addressed. [14] Dr Ingham’s report also states that Mr Bayley “will not be involved in the children’s care at Day Care”, but this is inconsistent with the two character references that both refer to Mr Bayley interacting with children at the Day Care. Moreover, Dr Ingham’s report is silent on Mr Bayley’s suitability of working with children in other environments. A positive notice is transferable, meaning that Mr Bayley would be authorised to work with children in any environment: Once a decision is made that a person is suitable to work with children there are no conditions around that decision and the blue card holder is authorised to work with children in any environment. This transferability means the assessment must take into account all possible work situations. The intended circumstances of the proposed employment, together with any supervision that may be available will not normally be factors relevant to the decision.16 [15] Most of Dr Ingham’s report appears to be based on what Mr Bayley has told her, rather than expert opinion on specific triggers, strategies to address those triggers (whatever they might be) and outcomes from counselling. Dr Ingham’s report is of little weight in these circumstances. [16] Despite this, Mr Bayley’s commitment to his family and country and the considerable lapse of time of 15 years without incident since the offending Agency dated 27 July 2015, Letter James Donovan to the Chief Executive Officer dated 22 July 2015. 13 BI v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 311 at [32]. 14 Report of Dr Jayne Ingham dated 15 September 2015. 15 Reasons for the decision to issue a negative notice dated 3 June 2015. 16 JA v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 251 at [4]. -- 4 of 6 -- 5 behaviour, suggests that Mr Bayley has been making some efforts to put his past behind him. What key risk factors prevent issuing a Positive Notice to Mr Bayley? [17] A key concern is Mr Bayley’s ongoing denial of the circumstances of his offending behaviour and lack of insight and remorse. In his application filed with the Tribunal on 12 June 2015, Mr Bayley said that he pleaded guilty on the advice of his solicitor, he still believed that he was not guilty of wilful and obscene exposure and admitted to only urinating in public.17 [18] In his submissions filed with the Tribunal on 3 July 2015, Mr Bayley maintained his innocence and again tried to minimise his behaviour by citing the need to relieve himself at the time and that he could not afford to defend himself and only pleaded guilty on the advice of his solicitor. [19] The Tribunal cannot go beyond the conviction and must accept it as is.18 The Tribunal notes that the offences did not involve children.19 However, by maintaining his innocence and minimising the offending behaviour, Mr Bayley appears to be unaware of the impact of this type of behaviour on others – even now. This is relevant to child-related employment.20 [20] Information obtained from the police shows that Mr Bayley was convicted of three counts of wilful exposure in or near a public place or school, during two separate periods of 1 February 2001 to 14 March 2001 and 23 March 2001 to 11 June 2001. The police material does not mention urinating. At least one woman witnessed the behaviour, close enough to identify Mr Bayley. The behaviour was not an isolated incident. [21] Mr Bayley was sentenced to a two years good behaviour bond and placed under the supervision of the New South Wales Probation Service “for at least 12 months”. The court’s sentence suggests a concern with a pattern of behaviour and a need for ongoing supervision in the medium term. However, it is unclear what triggered the behaviour and whether Mr Bayley undertook any counselling during the period of supervision or since to address the triggers for the behaviour. Is this an ‘exceptional case’ to not issue a Positive Notice to Mr Bayley? [22] The lengthy period without incident is not of itself sufficient to show that Mr Bayley does not present as a risk, without evidence of the triggers for the offending behaviour at the time and how they have been addressed since. Without evidence, the Tribunal cannot be satisfied that Mr Bayley has addressed the specific triggers for the offending behaviour. [23] Moreover, the evidence suggests that Mr Bayley’s current lack of understanding of the nature of his prior offending behaviour and its impact 17 Application filed 10 June 2015. 18 Pritchard v. Chief Executive Officer, Public Service Business Agency [2015] QCAT 25 at [36], citing with approval Drinkwater v. Commission for Children and Young People and Child Guardian [2010] QCAT 293 at [19]; Stitt v. Chief Executive Officer Public Safety Business Agency [2015] QCAT 257 at [37]. 19 Working with Children (Risk Management and Screening) Act 2000, s 226(2)(iv). 20 HIC v. Commissioner for Children and Young People and Child Guardian [2013] QCAT 403 at [65]. -- 5 of 6 -- 6 on others is a risk factor that presently outweighs the protective factors. The community must be confident that Mr Bayley is aware of the impact of his behaviour on others sufficient to work with children. [24] Even if Mr Bayley’s version of the circumstances of the behaviour is correct, at no stage has he expressed any understanding or insight into why this behaviour could be inappropriate or the impact it might have on others, including how it might be perceived by a child. [25] The community expects those working with children to at least understand how and why their past transgressions were inappropriate, as children depend on adults to have insight into their actions and their likely effect.21 [26] Because Mr Bayley has not shown this understanding, his case is ‘exceptional’ and prevents issuing him with a Positive Notice. Conclusion [27] The law requires that in considering whether to allow a person a Positive Notice, the interests of children must take priority over an applicant’s interests. Unfortunately for Mr Bayley, issuing him with a positive notice at this time is not in the best interests of children. [28] The correct and preferable decision is therefore to confirm the decision of the Chief Executive Officer, Public Safety Business Agency on 3 June 2015 to issue Daniel Bayley a negative notice. 21 Peri v. Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 at [49], citing with approval Re TAA [2006] QCST 11. -- 6 of 6 --