AA v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 651

CITATION: AA v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 651 PARTIES: AA (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML078-14 MATTER TYPE: Childrens matters HEARING DATE: 16 September 2014 HEARD AT: Brisbane with video-link to Mornington Island DECISION OF: Member Jarro, Presiding Member Member Ford, Member DELIVERED ON: 16 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive Officer, Public Safety Business Agency to issue a negative notice is set aside. 2. The applicant be issued a Blue Card. CATCHWORDS: CHILDRENS MATTER – BLUE CARD – Indigenous issues – remote community – whether exceptional case exists Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221, s 226 APPEARANCES and REPRESENTATION (if any): APPLICANT: AA represented by Dr Berry Zondag, solicitor, Kunkuri Laka Wellesley Islands Aboriginal Law, Justice and Governance Association Inc. RESPONDENT: The Chief Executive Officer, Public Safety Business Agency represented by Mr Craig Capper -- 1 of 9 -- 2 REASONS FOR DECISION [1] On 25 March 2014, the Commissioner for Children and Young People and Child Guardian on behalf of the Respondent decided to issue a Negative Notice in relation to the Applicant’s application for a Blue Card. In accordance with the Commission for Children and Young People and Child Guardian Act 2002 (“the Act”)1, the Respondent determined that an exceptional case existed in which it would not be in the best interests of children for a Positive Notice to be issued to the Applicant. [2] The Applicant seeks a review of the decision. This requires the Tribunal to conduct the matter afresh and proceed by way of hearing de novo. The Tribunal must consider whether the Applicant’s case is an exceptional one. Whilst the Act does not define “exceptional case”, the central focus of the Act is the protection of children. The paramount principle which must be administered is that the welfare and best interests of a child are paramount. [3] Further because the Applicant has a criminal history, the Tribunal must take into account the factors in s 226 of the Act. The factors include the nature of the offence and charge, when it occurred, its relevance to child- related employment and any court-imposed penalty. [4] The Act is not intended to impose an additional punishment on a person who has a criminal history. It should be noted that in this instance the Applicant’s criminal history does not include any “serious offence” or “disqualifying offence” as defined by the Act.2 In these circumstances, the Tribunal must issue a positive notice unless satisfied that this is an exceptional case in which would not harm the best interests for children for the Applicant to have a positive notice.3 The Applicant’s Case for a Positive Notice [5] The Applicant is a 38 year old Aboriginal man born on Mornington Island whose people are Lardil. He identifies through his mother whose mother (his maternal grandmother) was born in the Barakea area on Mornington Island. The Applicant’s traditional country is the Barakea area, an area of several thousand hectares where the Applicant continues to hunt and fish. He has been initiated into the Lardil culture and participated in traditional ceremonies and continues to practice Lardil law and custom. The Applicant’s maternal grandfather was a stolen generation man from the Northern Territory who had been taken as a child to Burketown and who later moved to Mornington Island. [6] The Applicant’s father is a non-indigenous man from Western Australia with whom he has never had a relationship. He does not know his 1 Now the Working with Children (Risk Management and Screening) Act 2000 with relevant identical provisions. 2 As per s 167, s 168 and Schedules 2 and 3 of the Act. 3 As per s 221 of the Act. -- 2 of 9 -- 3 biological father’s current whereabouts, nor indeed whether he is still alive, as the Applicant’s mother looked after the Applicant from birth. [7] The Applicant has three siblings, one older brother and two younger sisters. All of his siblings reside on Mornington Island and have families of their own. Like many Aboriginal families, the Applicant’s family is extended, large and supportive. [8] The Applicant made an application for a Blue Card to engage in regulated child-related activities. The Respondent received information which raised concerns about the Applicant’s eligibility to hold a Blue Card. Before deciding the application, the Respondent afforded the Applicant with an opportunity to respond to the information. Relevantly, the information concerned the Applicant’s 5-page criminal history (which does not consist of any “serious offence” or “disqualifying offence” for the purposes of the Act). [9] The Applicant availed himself of the opportunity to respond to the Respondent and the Respondent noted the following submissions on his behalf:  The Applicant has an excellent employment history and has worked for the Council for the past 13 years.  He has indicated he is remorseful for his offending behaviour and is ashamed of having a criminal history.  He has strong cultural roots and is passionate about hunting and sharing produce with others in the community.  He has attended programs for alcohol and anger management which have assisted him to take control of his actions.  Last year, he attended a seminar for community leaders around North Queensland.  He has indicated that he would like to be a role model for children and teach them about their culture. [10] As was noted in the Respondent’s reasons not to issue a Blue Card, the Applicant provided a number of character references demonstrating the following attributes:  The Applicant has a hard-working nature and has significantly contributed to the community.  He is known in the community for sharing produce that he hunts.  He is involved with the volunteer rescue services.  He acknowledged his errors of judgment at a meeting with the Elders panel.  He is known to be a good father, ensures that his children attend school and that they perform at a high level.  He is a reliable caretaker of other children and a positive role model. -- 3 of 9 -- 4 [11] The character references were provided by the Applicant’s partner Ms R4, Sarah Isaacs, Cecily Farrell and Bradley Wilson, all of whom gave evidence at the hearing, save for Mornington Island Mayor Bradley Wilson who was unable to attend because of mayoral commitments. Relevantly all witnesses were aware of the Applicant’s criminal history. Nevertheless, in their respectful views, they all indicated that there was nothing which reflected negatively upon the Applicant as being a suitable person to care for, and work with, children. [12] Notably the Tribunal received evidence from Ms R who has known the Applicant for most of her life and has been in a relationship with him for the past 16 years. They have two daughters – 14 and 9 years old. She described the Applicant as a good defacto husband and a good father. She wanted to make particular comment about the Applicant’s conviction for the offence of breaching a Domestic Violence Order on 12 March 2004. She disputed that it was alleged that the Applicant ‘struck me causing a cut requiring stitches’. She agreed with the version of events provided by the Applicant, namely that the Applicant hit a plate ‘which then hit my face’. At the time, she did not want to make a complaint about the incident and disagreed with the Police laying a complaint about breach of an existing Order. There has been no other breach and no other violence during their relationship. [13] It is convenient at this juncture to note the Applicant’s criminal history which comprises of some 22 years for offences involving property, weapons, violence, drugs and public nuisance. The Applicant received imprisonment (albeit no actual terms of imprisonment) for one offence of unlawful possession of weapons on 13 August 2010 and one count of possession and supply of a dangerous drug on 17 December 2012. [14] The Applicant’s first dealing with the Criminal Courts was in 1991 when he was dealt with in the Children’s Court (aged 15) for the charge of ‘unlawful use of motor vehicle’. Thereafter, he was subsequently dealt with on a number of occasions for offences which the Tribunal considers to be largely described as public nuisance and other simple type offences. In particular the Tribunal notes the Applicant had been dealt with in respect to a number of restricted liquor offences, given Mornington Island has an Alcohol Management Plan in place. [15] The Tribunal notes the Applicant’s conviction for possession and supply of dangerous drugs on 17 December 2012. The Applicant was dealt with by the Magistrates Court and sentenced to a term of 6 months imprisonment with an immediate parole date. [16] The Tribunal also notes a number of charges and convictions with respect to possession of weapons. The Applicant explained to the Tribunal that the charges arose in circumstances where he was hunting. He impressed upon the Tribunal that as a traditional Lardil man, he sought to provide food for his family. 4 Name withheld pursuant to non-publication order. -- 4 of 9 -- 5 [17] The Applicant indicated that he was remorseful for his offending behaviour and ‘ashamed of having a criminal history’. He indicated to the Tribunal that he was an avid hunter with strong cultural roots. It was incumbent upon him to provide and supply his family with food through hunting as has been shown to him when he was young. He hunts for pigs, wallaby and goanna on his traditional lands and for fish, shellfish, turtle and dugong at sea. He started hunting as a young boy. It was taught to him by his Elders. In the past, there were limited rules and regulations about weapons on Mornington Island. These days, the Applicant has no weapons as they have all been confiscated and he tends to hunt ‘with his dogs’. He loves his native food, particularly wallaby. [18] It was submitted on behalf of the Applicant, and as it was put, without seeking to minimise the Applicant’s criminal behaviour for which he demonstrated significant remorse, that there was a level of discrepancy between Mornington Island and the rest of ‘mainstream’ Queensland, namely that the level of violent offending leads to hospital admissions 17 times higher than the average Queensland population. Virtually every indigenous person of adult age on Mornington Island has a criminal history. Mornington Island has an adult population of about 750 permanent residents. In the last 18 months, almost 550 of them appeared in court. The number of charges at any one Magistrates Court sitting varies between 90 and 170, but is on average about 120; with 60 to 70 as the typical number of persons appearing, but sometimes the Court List contained over 100 individuals. The charges vary from simple alcohol possession charges to various forms of violence and driving offences. According to the submission, when extrapolating these figures, it is understandable that the ‘average ordinary’ adult on Mornington Island amasses on average one or two charges and convictions a year, which means that most people over 30 years of age will have a criminal record of several pages long. Virtually all offending is in some way alcohol-related. Alcohol abuse is typically also the vector for other offending, from violence to property-related and traffic offences. [19] The Applicant indicated to the Tribunal that he was a diesel fitter by trade and was currently assisting and training 12 boys. His plans for the future were to commence his own business on Mornington Island. [20] These days, the Applicant does not participate in any binge drinking and has attempted to remain abstinent from cannabis. He previously used it twice a day. These days, he smokes in the bush infrequently, away from people and not within his own home. [21] He explained in some detail about the harmful effects of drugs within the Mornington Island community. He told the Tribunal that it was a very bad thing he did and ‘thank God I gave it up’. [22] In relation to the offence of supply and possession of drugs, the Applicant indicated to the Tribunal that he did not supply drugs to the community, that it was a one-off matter for a close family friend. There were no intentions to supply the drug to the community but he expressed insight -- 5 of 9 -- 6 into the fact that once within the community, such drugs could come into the possession of children; however on this occasion he gave it to a friend who consumed it. [23] In a submission to both the Commission and the Tribunal, the Applicant explained as follows: I do at times consume alcohol and this has brought me problems with the law, because alcohol is prohibited on Mornington, but also because abuse of alcohol sometimes gets me into situations which I must avoid. When under the influence of alcohol I am sometimes a bit too boisterous and irresponsible. I have attended programs for alcohol and anger management, and these have assisted me to take control of my actions. I am in a good relationship and we have a nice house for our family. I have many friends in the community and am respected because I provide a lot of traditional food for others, although this is a lot less than it has been, as I am not breaching weapons licences any more. I am in the process of obtaining a gun licence again, and I hope to be able to do more hunting for pigs and wallaby. I think I can set an example for younger people on Mornington, because I have respect for our culture and the ways of hunting and sharing, but also because I am a qualified mechanic and have always worked in good employment. I showed the youngsters that you can have a nice house and a well-maintained yard. They can see that you can have a good car and look after it. Last year I was invited to attend a seminar for community leaders around North Queensland. This brought me in contact with people from other communities and we learned how to set an example. I want to continue to do so, and think I’m well capable of it. Why the Commissioner says the Applicant should not have a Positive Notice [24] The Respondent highlighted that the Applicant’s criminal history did not comprise of any serious offence and the relevant test was that required under s 226 of the Act. [25] In respect to the Applicant’s criminal history, it was submitted that it spanned a period of 22 years, resulting in numerous convictions between the ages of 15 and 37. 39 of the offences resulted in convictions, and only one charge did not proceed to a conviction. The Applicant’s convictions included five convictions with weapons, three with alcohol and two with drugs. [26] It was submitted on behalf of the Respondent that the Applicant’s conduct could broadly be categorised as extensive use of alcohol and bringing drugs into the community. [27] It was submitted that there was insufficient evidence to indicate the Applicant had gained adequate insight into his offending and the impact his actions may have had on others around him. It is particularly concerning, it was submitted, that the Applicant had not shown appropriate insight into the effect of supplying drugs to persons in the community and producing alcohol. Both of these, it was submitted, have -- 6 of 9 -- 7 the potential to be distributed throughout the community with widespread and damaging consequences. [28] The circumstances were such that it was unable to conclude that the circumstances or triggers that have led to the Applicant offending have been adequately addressed. In addition, given the Applicant’s lengthy criminal history and the recent nature of his offending, an insufficient period of time has passed to conclude that he is genuinely committed to refraining from offending in the future. [29] The Tribunal was directed to the decision of Loogatha v Commission for Children and Young People and Child Guardian [2011] QCAT 729 which confirmed an earlier decision made by the Commission to issue a Negative Notice. That was a case which involved an extensive criminal history and whether the Applicant represented an unacceptable risk of harm to children. Is the Applicant’s Case Exceptional? [30] With these matters in mind, it is necessary for the Tribunal to consider whether the Applicant’s case is an exceptional one. The role of this Tribunal is to decide the matter afresh and to take all reasonable steps to ensure that it has all relevant material before it. For example, the Tribunal can consider evidence of remorse and insight into the offending behaviour which was otherwise deprived of the Commissioner at the time of considering his decision. As stated earlier, the paramount consideration is the protection of children. [31] Being mindful of the obligations imposed under ss 226(2) of the Act, the Applicant’s criminal history includes convictions for the following offences:  insulting words (x 2);  possession of weapons and possession of weapon under the influence of liquor or a drug;  behave in a disorderly manner, insulting words, obstruction of Police;  breach of DVO;  killing animal with intent to steal;  wilful damage, unlawful possession of weapons and discharge of weapon on private land without owner’s consent;  breach of fine option order;  possession of home-made alcohol;  prohibition of possession of liquor in restricted area (x2);  unlawful possession of weapons (x2);  possession of home brew or component of home brew kit;  commit public nuisance;  possessing dangerous drug; -- 7 of 9 -- 8  supplying dangerous drug;  fail to store small arms ammunition and power device cartridges in a secure area;  prohibition of possession of liquor (x 3);  contravene direction or requirement and prohibition of possession of liquor. [32] As indicated none of the offences are categorised as serious or are disqualifying for the purposes of the Act. It is a matter of speculation as to whether the offences involved offences against children. In almost all cases, the Applicant’s penalty in respect to each conviction was by way of a fine. [33] The Applicant’s case is distinguishable from Loogatha because the case involved an applicant with a 32 year criminal history who was 50 at the time of his last conviction. The applicant’s offences also involved multiple breaches of domestic violence orders (some committed in the presence of children) as well as assault, including one aggravated assault on a female. [34] At the hearing of the matter, the Tribunal had the opportunity to observe the demeanour and the responses of the Applicant about his past history, for which he demonstrated significant remorse, as well as an ability to articulate matters to avoid any concerns relating to any potential exposure and risk of harm to children. [35] As for the supply and possession charge and conviction, the Applicant indicated that it was never his intention for young people to be placed at risk for the supply of a drug to his family friend. He does not condone the use of drugs and notices the negative impacts upon his community. [36] He impressed upon the Tribunal as demonstrating insight and remorse. [37] Based on the evidence given by others, the Tribunal formed the impression that the Applicant was a positive role model to children and young people who might come into his care. [38] The Tribunal is cognisant of the decision in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 49. Insofar as there are protective factors, the Tribunal considers the Applicant has a strong, supportive partner; there are no current domestic violence concerns; he has participated in anger management counselling in the past in order to manage his feelings and set goals; he maintains steady, gainful employment; he is regarded as a role model for young people of the community; he has shown remorse for his past offending; and, there are no current issues concerning reoffending and recidivism. These outweigh the risk factors which include, to some extent, the ages with respect to the Applicant’s criminal convictions and the recency of some of his offending behaviour. The risk factors though must be balanced against the protective factors sufficient for the Tribunal to -- 8 of 9 -- 9 determine that the Applicant’s case is, to the requisite standard, not one properly categorised as exceptional. [39] In the circumstances, the Tribunal has decided to set aside the Respondent’s decision to refuse the application for a Positive Notice. Instead, a Blue Card should be granted to the Applicant. Non-Publication Order [40] Neither party made an application for a non-publication order under s 66 of the Queensland Civil and Administration Tribunal Act 2009, however the Tribunal is satisfied that the name of the Applicant named in the decision and his partner Ms R should be de-identified as it is contrary to the public interest. The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public to access details of Blue Card matters, the decisions made by the Tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur, albeit de-identified.5 5 See, for instance, DAC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 193 at [44] – [46]. -- 9 of 9 --