BI v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 311

CITATION: BI v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 311 PARTIES: BI (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML261-14 MATTER TYPE: Childrens matters HEARING DATE: 11 June 2015 HEARD AT: Brisbane DECISION OF: Member Ford DELIVERED ON: 14 August 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Public Safety Business Agency to issue a negative notice to BI is confirmed. 2. The Tribunal prohibits the publication of any information which identifies or could lead to the identification of a child, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009. CATCHWORDS: WORKING WITH CHILDREN – BLUE CARD – where not a serious offence – where applicant wants to work with children – whether case is exceptional to not be issued with a positive notice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 226, s 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; cited -- 1 of 7 -- 2 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291; cited In the marriage of Sandrik (1991) 104 FLR 394 Grinrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 APPEARANCES: APPLICANT: BI RESPONDENT: Public Safety Business Agency represented by Peter Reid REASONS FOR DECISION [1] Mr BI is a young man who experienced difficult issues in his teens. These issues included losing his mother at the age of 17 years old after a number of years caring for her and his family. His memory is that his father had been a heavy drinker and, upon finding God, continued a different kind of control on the family. Mr BI became estranged further from his father and he relied on drugs and alcohol to create some control in his life. [2] Mr BI has a criminal history spanning 2004 to 2013 including possessing a knife in a public place, common assault on his father, possessing dangerous drugs and possessing property suspected of having been used in connection with the commission of a drug offence. Penalties ranged from non-recorded convictions and fines to suspended periods of imprisonment. Against this troubled background, it is fair to say that Mr BI has not led an exemplary life. [3] Mr BI wants to work with children, most particularly as a volunteer with his Surf Life Saving Club and requires a ‘blue card’ to do so. He was issued with a negative notice on 1 December 2014 by the Public Safety Business Agency (the Agency). Although he does not have convictions for serious offences, the Agency determined his case was exceptional. That is, Mr BI’s criminal history and his submissions to the Agency led the Agency to the view that an exceptional case exists in which it would not be in the best interests of children for him to have a ‘blue card’. What legal matters must the Tribunal consider? [4] The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.1 1 Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) s 6, s 360. -- 2 of 7 -- 3 [5] As Mr BI does not have convictions for a serious offence, there is a statutory presumption that a positive notice (thus a blue card) should be issued to him. Does the Tribunal agree with the Agency in that his case is ‘exceptional’? Considering the balance of probabilities and bearing in mind the gravity of the consequences involved, I must be satisfied that an exceptional case does not exist.2 [6] The QCAT Appeal Tribunal states that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.3 [7] Determining exceptional case is a matter of discretion. What amounts to an exceptional case must be such as to ‘take it out and beyond the ordinary circumstances reasonably expected to occur”.4 Although allegations or convictions may relate to offences committed a number of years ago, the passage of time does not detract from their seriousness.5 [8] The Tribunal must have regard to the circumstances of Mr BI offending and considerations prescribed in s 226 of the Act. The Tribunal will also consider the approach endorsed by the Court of Appeal in identifying and balancing the relevant risk and protective factors arising from the circumstances of a particular case.6 [9] Blue cards are issued without condition so Mr BI, if successful in his review, could work in any area of child related employment, whether supervised or not. Why Mr BI should have a blue card – his view of protective factors [10] Mr BI cooked and cleaned for his family through the six years of his mother’s illness before she passed away when he was 17 years old. He had to grow up quickly, not doing what other teenagers did socially. He managed to attain an OP9 in his final year at school however. He now believes he was in denial with the depression he was experiencing from the age of 15 years old and started smoking marijuana. [11] Moving between home and other abodes, Mr BI worked as a labourer in cafes and started, but did not complete, a Town Planning degree and a Civil Engineering degree. These were troubling times for him, he being on and 2 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cf with authority the test prescribed in Bringinshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336. 3 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31]. 4 In the marriage of Sandrik (1991) 104 FLR 394 at 399-400. 5 Grinrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289. 6 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. -- 3 of 7 -- 4 off drugs from the age of 19 years old up to 2013, the last time he took drugs after his arrest. [12] Drug taking made him feel relaxed and helped take his mind off things. The stress and tension with his father was compounded as they grew further apart after his mother died. He does not have contact with his father, who also has no relationship with his granddaughter. [13] Mr BI believes he has turned his life around. He has a young daughter with whom he shares responsibility with his partner who also works. They share their home with her sister and her young child. He completed a Bachelor degree but is yet to get employment in his field of interest. He currently works at a café. [14] Mr BI has volunteered with a surf life saving club, holding a Level 1 certificate and this is work that he enjoys. He believes he is a good role model and mentor for young people. [15] Mr BI believes he is a changed man. He stopped using drugs upon his arrest in 2013 for the one kilo of marijuana in his possession. His partner was very disappointed in him. He asserts the marijuana was not for sale, but an amount to share between some friends who had all ‘chipped in’ to purchase it at a cheaper cost. He declined to discuss these friends in the hearing. However, he rarely sees these people, now only at birthdays and weddings. He is no longer tempted, having the responsibility of a young child. [16] Mr G, an employee of a drug and alcohol residential treatment service, provided a written submission. He has known Mr BI for 16 years, both sharing a mis-spent youth, with cannabis being a part of both their lives. Mr G has been ‘clean’ for over six years. He believes fatherhood has been a huge motivating factor in major changes being made by Mr BI. He believed that Mr BI always sought to be of service to the community and to give back what was so freely given to him. Of note, is his connection to the volunteer life savers and his achievement in gaining a degree. He ‘had a generosity of spirit like no other’ and Mr G believed he is no risk to anyone in the community, especially children. He had full knowledge of Mr BI’s past crimes and previous addictions and considered him suitable to hold a Blue Card. [17] Ms KH, a psychologist, wrote that the 2013 charges against Mr BI were a ‘completely uncharacteristic aberration’ and one she believed he sincerely and completely regrets. She commended his university level and certified TESOL course attainments and past achievements, such as representing QUT in rugby league in 2009. She believed he was remorseful for his actions, understood the seriousness of his crime and the risk it posed to himself, family and others in the community. As a friend of his partner, she had witnessed his joy in becoming a father and in growing and developing into the intelligent and competent adult he had become. [18] Mr BI confirmed that he no longer relied on drugs to deal with stress. He runs, boxes at his local gym to relax and is able to discuss any concerns -- 4 of 7 -- 5 with Mr G on a weekly basis. He stopped attending narcotics Anonymous as there were hard drug takers in attendance and he did not want to associate with them. He was firm in his belief that he would not return to drugs as his partner has very strong views and was devastated by the charges in 2013. Their child was born a few months after his arrest and while ashamed of his past, he is now proud of what he has achieved. Why Mr BI should not have a Blue Card - The Public Safety Business Agency’s view of risk factors [19] Mr BI’s offences span 2004 to 2014, including being sentenced on 1 May 2014 relating to a drug offence and numerous drug related charges. He continues to be subject to a suspended sentence due to expire in May 2016. While not charged with ‘supplying dangerous drugs’, police materials indicate he was apprehended in possession of one kilo of cannabis, drug paraphernalia and mobile telephones that contained messages relating to the sale and supply of drugs. In 2006 he was convicted of drug offences, suggesting long term exposure to the culture of drugs. [20] While attending Alcoholics Anonymous and Narcotics Anonymous, any perceived benefits are unclear. A report from the Alcohol and Drug Assessment Unit (PAH) in July 2013 merely confirms attendance of five sessions and does not address Mr BI’s risks of future drug offending. [21] He has a history of violent behaviour while intoxicated with sentences in 2004 and 2005. A Domestic and Family Violence Protection Order was issued against him on 30 August 2004. In contravention of this order he assaulted his father at his father’s residence on two occasions. Mr BI has not referred to any recent material identifying professional assistance or adoption of strategies to minimise the risk of future violence. [22] Serious concerns remain in relation to Mr BI’s ability to ensure the safety and wellbeing of children who may be in his care and to be a positive role model. He has failed to demonstrate an ability to promote and protect the best interests of children who are in his care. Is this case exceptional? [23] While Mr BI had elected three witnesses, one being his partner, to speak on his behalf at the hearing, none were available on the hearing day. Considerable effort was made by the Tribunal to accommodate him in preparing his material for hearing, including adjourning the dates and extending time for submissions. The hearing itself was adjourned on two occasions on the day to allow Mr BI the opportunity to contact these witnesses to secure their telephone evidence. This was to no avail. The key witness, his partner, gave no credibility either in writing or orally to Mr BI’s assertions. [24] The Tribunal acknowledges a number of positive elements in the evidence available, as does the Agency. -- 5 of 7 -- 6 [25] Mr BI has made positive lifestyle gains in the last two years since his last charge. He has a greater sense of responsibility, now being a father and in a partnership with his daughter’s mother. There has been no further charges relating to drugs or alcohol. [26] Mr BI has completed a university degree, albeit committing offences while undertaking study required. He presents as motivated to find more professional work than his current position in hospitality. He is keen to share his skills within the lifesaving arena with young people. [27] While a concern to the Agency, Mr BI's previous convictions of violence, seemed related to a great degree to a traumatic home life and to his complex and strained relationship with his father. There is no evidence that he has conducted himself in a violent manner since 2005. [28] The Tribunal however is satisfied that this is an exceptional case and that Mr BI should not be issued with a blue card. The risk factors outweigh the protective factors in this case. [29] Mr BI is yet to complete a suspended sentence of two years, due to expire in May 2016. The immediate threat of a return to prison would currently place a significant deterrent on Mr BI’s behaviour. I agree with the agency's concerns that there is a long term exposure to a culture of drugs and that it remains to be seen whether he will avoid reoffending once the supervision ends. [30] It is regrettable that the key person in this case to support Mr BI's claims, his partner, failed to participate in any way in the proceedings before the Tribunal. Mr BI relied heavily on his status as a father and on his relationship to articulate his argument of his suitability. His changed circumstances could not be properly tested. [31] Throughout the hearing Mr BI struggled to show insight into the gravity of his offending behaviour. He started smoking marijuana at age 15 years old and continued on and off for fourteen years, not learning from his first drug charges in 2006. His subsequent reoffending and charges in 2013 involved possession of one kilo of cannabis. While he was not charged with supplying dangerous drugs, the police material indicates that he was in possession of cash, associated equipment and had mobile phones containing messages relating to the sale and supply over the period January to April 2013. The recency of these charges and subsequent convictions, including the suspended sentence, remains a risk factor. [32] One of Mr BI's referees showed no knowledge of prior offending behaviour, with that being confirmed in her written submissions that his last offences were ‘a completely uncharacteristic aberration’. While it is commendable that his two referees have such trust in his current behaviours, and see him as a changed man, again their written statements could not be tested orally at the hearing. -- 6 of 7 -- 7 [33] The supportive reference from a drug counsellor and long term friend affirmed Mr BI's commitment to helping others, most particularly with a focus on the volunteer lifesavers program. However, this did not give me comfort against a background whereby many of his positive skills' attainment occurred alongside drug offending behaviour. [34] Mr BI presents as a man who has matured with the birth of his son, which occurred after his last charges. He has much to lose, on the basis of his assertions his partner was devastated with his drug charges in 2013, if he returned to an illicit drug lifestyle. Mr BI is encouraged to reapply for a blue card when he is eligible to do so. The period of time would allow for him to complete his suspended sentence and to demonstrate, with adequate evidence, he is suitable to hold a blue card. Conclusion [35] The Tribunal must make the correct and preferable decision and I must consider the welfare and best interests of children in determining whether this is an exceptional case. While Mr BI has made positive gains in his life, particularly with the responsibility that comes with fatherhood, I am not satisfied that adequate evidence was provided to overturn the Agency's decision nor challenge their reasoning for issuing a negative notice. The risk factors that remain outweigh the positive factors. The reasons for determining an exceptional case are more compelling than the evidence provided by Mr BI. [36] The decision of the Agency is thus confirmed. Non publication of identifying information [37] Under s 66 of the QCAT Act, I have the power to prohibit publication of information that may identify persons affected by the proceeding, this includes identifying particulars which could reasonably lead to the identification of children. The Tribunal prohibits publication of the names of parties, referees and organisations in this matter. The public interest can still be served with the publication of these reasons, albeit in a de- identified format. -- 7 of 7 --