BEL v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 167

CITATION: BEL v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 167 PARTIES: BEL v Chief Executive Officer, Public Safety Business Agency APPLICATION NUMBER: CML220-15 MATTER TYPE: Children Matters HEARING DATE: 12 February 2016 HEARD AT: Townsville DECISION OF: Member W Pennell DELIVERED ON: 2 March 2016 DELIVERED AT: Townsville DECISION MADE: 1. The decision of the Chief Executive Officer, Public Safety Business Agency dated 24 July 2015 to issue a negative notice to BEL is set aside. 2. The Tribunal directs that the Chief Executive Officer, Public Safety Business Agency issue BEL a positive notice and a Blue Card. 3. Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant and the locality of the applicant. CHILDRENS MATTER – BLUE CARD – REVIEW OF NEGATIVE NOTICE – review of a decision to issue a negative notice – review of a decision to cancel a blue card – change in applicant’s criminal history – whether or not it is in the best interests of children to issue a positive notice – whether exceptional circumstances exist – blue card as a means of a therapeutic tool -- 1 of 9 -- 2 NON PUBLICATION – protection of the applicant’s identity – identification of witnesses – confidential information – discretion to make a non-publication order Working with Children (Risk Management and Screening) Act 2000 – s 5, s 6, s 8, s 266 and s 360 Queensland Civil and Administrative Tribunal Act 2009, s 20, s 24 and s 66 Brady v Public Safety Business Agency [2015] QCAT 90 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 Kent v Wilson [2000] VSC 98 Perry v Browns Patents (1930) 48 RPC 200 APPEARANCES and REPRESENTATIONS: APPLICANT: Self Represented RESPONDENT: Ms Kylie Heath for the Public Safety Business Agency REASONS FOR DECISION Introduction [1] BEL (the Applicant) is a 58 year old woman. She previously held a Blue Card from 2010 until it was cancelled by the Respondent in July 2015. [2] Up until 2014, the Applicant had always maintained employment since she was aged 15, except for a period when she recovered from cancer in 2007. Although currently unemployed at the time of the hearing, she was previously employed as a disability carer until 2014. [3] She met her husband when she was aged 27 and they married two years later. There were two children from their marriage, who are now adults. About 24 years ago, her husband had a mental breakdown, his demeanour changed, he became a devoutly religious and from that time until they separated, she suffered a significant amount of emotional and psychological abuse from him. He developed a controlling nature and he regularly intimidated and harassed her. -- 2 of 9 -- 3 [4] In 2007, she underwent treatment for cancer. Up until that time, she rarely drank alcohol and did not gamble. After recovering from cancer, she started visiting licenced gaming venues, at first only drinking coffee whilst gambling, but this later escalated to alcohol. She eventually became addicted to both gambling and alcohol. [5] Her consumption of alcohol at home also increased, as did her desire to gamble. Her visits to various gaming establishments were a coping mechanism and a means for her to escape the domestic violence in her marriage. At some point, she recognised the problems that this caused and she approached nine separate gaming venues and barred herself from those establishments. [6] On 29 June 2015, the Applicant appeared in the Magistrates Court where she pleaded guilty to one charge of fraud,1 six charges of burglary2 and one charge of contravening a direction or requirement.3 Apart from a historical drink driving matter from 1983, the Applicant has no other criminal history. [7] For the criminal charges,4 the Magistrates Court imposed concurrent sentences of imprisonment of six months for the fraud charge, and eighteen months for the burglary charges. The Court ordered that the Applicant be released on that same day on immediate parole. For contravening a direction or requirement, she received a $100.00 fine. [8] In the period leading up to when she was charged with the criminal offences, the Applicant’s gambling had reached a point where she was spending about $400.00 – $500.00 per week on the poker machines. Driven by the need to feed her addictions, she committed the offences. The victims were known to her, one was a neighbour and the Applicant acknowledged that she had breached their trust. She made full admissions to the offences, co-operated with the administration of justice and has repaid all compensation to the victims. [9] Because of her criminal convictions, she is now unemployed, living in a flat by herself and is in receipt of a Centrelink Newstart payment. She lives below the poverty line, but says that she has no desire to be a permanent burden on society by relying upon Centrelink payments. She wants to return to the workforce. [10] She now describes herself as a recovering alcoholic and attends regular Alcoholics Anonymous (AA) meetings. She has the benefit of a sponsor within that organisation who guides and advises her as she manages her recovery. She also employs other coping mechanisms such as meditation and regular church attendances. 1 Criminal Code Act 1899 (Qld) s 408C(1)(b). 2 Ibid s 419(4). 3 Police Powers and Responsibility Act 2000 (Qld) s 791(2). 4 The burglary and fraud charges. -- 3 of 9 -- 4 The Respondent [11] The Respondent is the Chief Executive Officer, Public Safety Business Agency (the Respondent). The Respondent’s functions are varied and include a responsibility to administer the screening of people employed, or proposed to be employed in certain related employment; and people carrying on, or proposing to carry on certain related businesses; and to audit or monitor compliance with the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’).5 The Respondent’s central focus is the protection of children. Review Jurisdiction [12] The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) allows a person affected by a reviewable decision to review that decision.6 The role of the Tribunal is to produce a correct and preferable decision based on the merits of the application7 after hearing and deciding the matter by way of a fresh hearing. [13] In arriving at the correct and preferable decision, the Tribunal has the discretion to either confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision maker, with the directions the Tribunal considers appropriate.8 Cancellation of the Applicant’s Blue Card [14] On 24 July 2015, the Applicant was issued with a negative notice and her Blue Card was cancelled. The Respondent had been notified by the Queensland Police Service (QPS) of a change in the Applicant’s criminal history. [15] The Respondent invited the Applicant to make submissions to support her eligibility to hold a Blue Card. The Respondent rejected those submissions and the Applicant’s Blue Card was cancelled. Reasons for that decision9 were provided to the Applicant. The Applicant’s case [16] The Applicant called two witnesses to support her application. They were SM, her current psychologist, and MK who is her AA sponsor. [17] Apart from being a psychologist, SM is also a qualified gambling treatment practitioner. The Applicant has consulted with her on at least five times. SM’s opinion is that the Applicant has a low risk of recidivism. That assessment was based on the Applicant acknowledging her issues with alcohol, and her continued and regular attendance to the AA meetings, as well as being under SM’s care. 5 Working with Children Act s 8. 6 As provided under the QCAT Act. 7 QCAT Act s 20. 8 Ibid s 24. 9 Respondent’s document at 45-55. -- 4 of 9 -- 5 [18] It is SM’s opinion that the Applicant's employment is critical to her successful rehabilitation and that her return to employment could be facilitated by reinstating the Blue Card. [19] MK is a recovered alcoholic and has been alcohol free for the past 19 years. MK and the Applicant met at an AA meeting in May 2015. MK has seen the Applicant grow in recovery by attending regular AA meetings and applying the principles of the AA’s 12-step recovery program. The Respondent’s case [20] The Respondent’s position was that the risk factors outweighed the protective factors, having particular regard to the Applicant’s convictions in 2015 for dishonesty offences committed against a number of separate complainants, including people residing in an aged care facility. The trust of those victims had been breached, some of whom were particularly vulnerable. [21] The Respondent opined that it is significant that the Applicant remains on parole until the end of 2016 because parole orders require a degree of supervision and reporting. It remained to be seen whether the Applicant will continue to abstain from consuming alcohol, and avoid offending, without this supervision. Although the Respondent did concede that to date, there does not appear to have been any reports of the Applicant breaching her parole conditions. [22] The Respondent argued that although the Applicant’s offending behaviour occurred recently, the Applicant's problematic behaviour began in 2007. This suggested that her alcohol and gambling problems involved longstanding, entrenched and addictive behaviours which continued despite numerous attempts in recent times to overcome them. The Respondent also argued that within the written material filed by the Applicant, there remained a number of significant unresolved issues which impact on the Applicant's eligibility to hold a Blue Card. [23] The Respondent argued that SM’s opinion about the Applicant’s rehabilitation could be assisted by having a blue card is inconsistent with the approach previously taken by the Tribunal. The Respondent’s position is that a blue card is not a therapeutic tool and any hardship or prejudice suffered by the Applicant due to the refusal of the Blue Card is irrelevant and should not be consideration. [24] To support its position on that point, the Respondent relied upon the previous decision of this Tribunal in Brady v Public Safety Business Agency10 (Brady) where it was determined that a Blue Card is not a therapeutic tool. 10 [2015] QCAT 90 at [40]. -- 5 of 9 -- 6 Discussion [25] The Applicant’s matter and the decision of Brady are distinguishable from each other. Although both matters involved offences against vulnerable people, Brady’s offences were committed against people under his care and in the course of his employment. Whereas the Applicant’s offences are not related to her employment. [26] When he applied for a blue card, Brady was employed. He did not require the card for his employment, but instead wanted it so that he could referee soccer, apparently for his own peace of mind and mental health. [27] With respect to the Applicant’s position, her reasons for wanting a Blue Card are entirely different to that of Brady. She no longer wants to be a financial burden on society by receiving Centrelink Newstart benefits and wants to return to the workforce. [28] In some circumstances, the correct approach may be that a Blue Card should not be used as a means of therapy. However, each case has its own set of individual circumstances, and any decision made should be undertaken only after careful consideration of all the facts and circumstances, accompanied by a judgment of the merits of the case. Of course, this approach also requires the objects and principles of the Working with Children Act11 to be considered. [29] In some cases, employment can be a form of therapy, particularly if an individual relies upon employment to successfully rehabilitate, and employment provides for, or maintains stability in their life. In applying those principles already mentioned, there is a distinction between the use of a blue card for the Applicant’s employment and its use for recreational purposes or social interaction as was in Brady’s case. [30] In the Applicant’s circumstances, she has an ongoing therapeutic relationship with a mental health professional who is assisting her to manage future stresses, and assist her in how to avoid any future mental health instability which could trigger a return to alcohol and gambling. The Applicant has made progress in therapeutic sessions with SM. The Tribunal accepts that the protective factors identified by SM provide a degree of certainty that the Applicant is not likely to reoffend and that her propensity to reoffend is very low given the conditions of her parole. [31] Prior to her sentence in the Magistrates Court for the criminal charges, the Applicant consulted with a psychologist, Mr WR. He was not called to give evidence before the Tribunal, but reference was made in the hearing to his report.12 11 Working with Children Act ss 5, 6, 360. 12 Exhibit 1 – A psychological evaluation of the Respondent dated 25 May 2015. -- 6 of 9 -- 7 [32] WR’s report suggested that the Applicant's mental health was highly vulnerable. He recommended that she undergo immediate intervention due to intense and recurrent suicidal thoughts. [33] On explaining that comment, the Applicant said that she had been given a series of questions to answer by WR, and in answering those questions she mentioned that she had considered suicide, but that was a one off thought several years ago. She has undertaken that intervention recommended by WR by consulting with SM. Self-harm is no longer something that she now thinks about, or in any other way contemplates and there was never any suggestion from SM that there was any suicide ideation. What is an “exceptional case”? [34] Although nothing can be found in the Working with Children Act which gives support to the special meaning or construction of “exceptional circumstances”, guidance for that definition is provided in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 at [34]13 where Philippides J said “… it would be most unwise to lay down any general rule with regard to what is an exceptional case …. All these matters are matters of discretion.” [35] In Kent v Wilson [2000] VSC 98, Hedigan J considered the term “exceptional circumstances” and commented that exceptional is defined, contextually, in the Oxford English Dictionary14 as meaning ‘unusual, special, out of the ordinary course’. The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what the relevant factors are.15 Conclusion [36] The Applicant expressed remorse for her offending. She has expressed a level of insight into her offending by identifying her gambling and alcohol addiction, and the impact that those factors had on her health and upon others. She was troubled for quite some time in her marriage with domestic violence issues, which appear to be an underlying causal factors leading to her gambling and alcohol addictions, and which ultimately led towards her offending behaviour. [37] The Applicant now attends Alcoholics Anonymous (AA) meetings five times a week and no longer drinks alcohol. Her rehabilitation is assisted by regular consultations with a psychologist. Other character references also speak positively of the Applicant's character, her work ethic and her particularly positive interactions and skills when working with children. The Respondent acknowledged that all of those features are protective factors. 13 Adopting the approach of Luxmore J in Perry and Browns Patents (1930) 48 RPC 200 14 John Simpson and Edmund Weiner (eds), The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989), Volume V. 15 Kent v Wilson [2000] VSC 98 at [22] -- 7 of 9 -- 8 [38] Because the Applicant has been charged with and convicted of criminal offences, there are considerations which must be applied when determining whether an exceptional case exists.16 [39] In reaching a determination and deciding whether there is an exceptional case for the Applicant, the Tribunal must also consider all of the circumstances. Regard must also be had to, amongst other things, when the offences were committed, the nature of the offending behaviour, its relevance to the Applicant’s career or future employment, if the offences occurred within her workplace and anything else that the Tribunal reasonably considers relevant to the assessment of the Applicant’s eligibility. [40] In consideration of all those factors, the Tribunal must be satisfied whether the nature of the Applicant’s offending behaviour is such that there are exceptional circumstances to justify that it would not be in the best interests of children or young people if she was issued with a positive notice and a blue card. [41] None of the Applicant’s offences are deemed “serious offences” or “disqualifying offences” within the provisions of the Working with Children Act. The circumstances of the offences were not related to the execution of the Applicant’s employment at that time. Had there been evidence that the victims of the Applicant’s offending were under her care at the time of the offending, or that she interacted with the victims in the course of carrying out her employment, then some serious concerns could justifiably been raised about her suitability. [42] The Applicant has made positive progress. She has demonstrated regret for her actions and she has sought professional assistance to put in place some necessary changes in her life. [43] The Tribunal is satisfied that the existing circumstances of this matter do not render the Applicant’s case as an exceptional one. There are a number of significant protective factors which would not harm the best interest of children for a positive notice and a blue card to be issued to the Applicant. The Tribunal is also satisfied that the correct and preferable decision in this matter is to set aside the Respondent’s decision and direct that a positive notice and blue card be issued to the Applicant. Non-Publication Order [44] The QCAT Act provides the Tribunal with discretionary power to make a non-publication order prohibiting the publication of the contents of any document or thing produced, or evidence given, or information that might enable a person who appeared before the Tribunal to be identified.17 The making of such an Order can be on the Tribunal’s own initiative. 16 Working with Children Act s 226. 17 QCAT Act s 66. -- 8 of 9 -- 9 [45] The Tribunal is satisfied that a non-publication order is necessary to avoid the publication of confidential information. Decision [46] The decision of the Tribunal is that:– 1. The decision of the Chief Executive Officer, Public Safety Business Agency dated 24 July 2015 to issue a negative notice to BEL is set aside. 2. The Tribunal directs that the Chief Executive Officer, Public Safety Business Agency issue BEL a positive notice and a blue card. 3. Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the names of the Applicant, any witnesses appearing for the Applicant and the locality of the Applicant. -- 9 of 9 --